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Archive of entries posted on September 2011

When is a Meeting not a Meeting?

When the Supercommittee says so, apparently.  According to this Politico article, the Supercommittee has been “supersecret,” holding a six and half hour closed session in the Capitol yesterday. But wait, the Supercommittee rules require that its “meetings” be open, unless the Supercommittee votes in open session to close them. Wasn’t this a meeting? Senator Kerry [...]

Legislative Instructions and the Article V Convention

In thinking about the question of whether an Article V convention may be limited, it is helpful to distinguish between two types of limitations. The first goes to a limitation on the authority of the convention itself—this limitation would hold that proposed amendments outside the scope of the convention’s authority (as established by the states [...]

How to Count to 34: Paulsen on the Article V Convention

In the debate over the “runaway convention,” Professor Michael Stokes Paulsen occupies an unusual, and perhaps unique, position. In a seminal 1993 article, Paulsen argued that an Article V convention could not be limited, but that this wasn’t something that people should be worried about. He observed: “The power of the convention delegates to limit [...]

Article V and the “Runaway Convention”

Article V requires Congress, “on the Application of the Legislatures of two thirds of the several States,” to “call a Convention for proposing Amendments.” This process for proposing constitutional amendments has never been used, in large part because of fears that it would lead to a “runaway convention.” The exact definition of a runaway convention [...]

After Only 499 Years, Have We Forgotten Richard Strode?

Warning: If you are not deep in the weeds of Speech or Debate, this post may not be for you. With regard to the question of whether the Speech or Debate Clause prohibits former Congressman Renzi’s prosecution in connection with his role in developing certain land exchange legislation, one English precedent stands out as particularly [...]

“Would You Like Tax Hikes or Spending Cuts With Your Eggs?”

John Wonderlich of the Sunlight Foundation reports on a possible closed meeting of the Supercommittee tomorrow. Initially this was described as an “executive session” of the Supercommittee; later it was “clarified” that it will be a “private breakfast meeting.” The Supercommittee rules clearly require, at a minimum, that a vote be taken in open session [...]

Kathleen Clark on the “Right to Counsel” in Intelligence Oversight

Professor Kathleen Clark recently published this article regarding congressional oversight of intelligence. In brief, she argues that when leaders of the intelligence committees are given restricted briefings by the executive branch, they should be able to share the information with cleared committee staff members from whom they need to obtain “counsel” (by which she means [...]

Are Lindsey Graham and Scott Brown Incompatible?

Under Article I, section 6, clause 2, I mean. That Clause provides in pertinent part that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Under this provision, known as the Incompatibility Clause, holding an office “under the United States” is deemed incompatible [...]

Supercommittee Rules Not So Clear

The Supercommittee rules are out, but they leave some unanswered questions. To begin with, the rules provide that “[t]he rules of the Senate and the House of Representatives, to the extent that they are applicable to committees, including rule XXXVI of the Standing Rules of the Senate and clause 2 of rule XI of the [...]

A Point of Order Final Exam

Consider the following facts: Jeffrey Sterling served as a CIA officer from 1993 to January 31, 2002. During that time, he became acquainted with a clandestine operational program that was designed to disrupt the nuclear development activities of Iran. According to a book later written by James Risen, this program involved a “botched attempt under [...]