Thursday, March 28, 2013
Friday, March 22, 2013
On this day, in 1972, the Equal Rights Amendment was approved by Congress and sent to the states for ratification. The National Constitution Center has a very interesting blog post that talks about this proposed amendment to the U.S. Constitution, as well as three other proposed amendments that came (relatively) close to being ratified:
- The Titles of Nobility Amendment: Sometimes referred to as "the missing 13th Amendment", this proposed amendment, originally approved by Congress in 1810 and technically still open for ratification (ala the 27th Amendment), came the closest of any to being ratified without succeeding, at one point needing just one more state for ratification!
- The Child Labor Amendment: This proposed amendment, approved by Congress in 1924, would have explicitly given Congress the "power to limit, regulate, and prohibit the labor of persons under eighteen years of age." The amendment was proposed in response to U.S. Supreme Court decisions that found unconstitutional some earlier attempts by Congress to deal with child labor. Technically, this proposal is still susceptible to ratification and has been ratified by 28 states. Many have argued that the enactment of the Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. § 201-19 (2006)) made this amendment unnecessary. I mean, what are the chances we'll ever have a pro-business Congress and a pro-business President at the same time that would be capable of weakening (if not outright repealing) this legislative act?! Right? For an interesting discussion of this proposed amendment and its relationship to President Roosevelt's infamous court-packing plan, see Gerard N. Magliocca, "Court-Packing and the Child Labor Amendment", 27 Const. Commentary 455 (2011).
- The District of Columbia Voting Rights Amendment: This proposed amendment, approved by Congress in 1978 but subject to a seven-year deadline for state ratifications, could only muster the support of 16 states before the approval period expired. For an interesting summary and analysis of this proposed amendment, including arguments for and against ratification, see Background Paper 79-3, prepared by the Research Division of the Nevada Legislative Counsel Bureau.
For additional information on the Equal Rights Amendment, inluding an overview and history of the amendment, see EqualRightsAmendment.org.
Wednesday, March 20, 2013
Recently, the state of Arkansas made headlines across the nation when they overrode a governor's veto to enact the tightest abortion restrictions in the country (at that time). Most of the news, deservedly so, focused on the content of the new act. What caught my eye, however, was how easy it was for the Arkansas legislature to override a veto: a mere simple majority of both houses is required!
If that's all it takes, why even involve a governor in the process?!
But Arkansas isn't alone. Five other states do not require at least three-fifths of each house to override a veto: Alabama, Indiana, Kentucky, Tennessee, and West Virginia. All of these require simply a majority of those elected in each house to override a veto. To be fair, although most states require at least three-fifths of legislators elected to override a veto, several states require two-thirds or three-fifths of the members present to do so, which, when coupled with a quorum requirement of a majority of those elected, means that a veto theoretically could be overridden with the approval of as little as one-third (plus one) of the elected legislature. But these states that require a simple majority of those elected in each house to override a veto (with the exception of Kentucky), also require a simple majority of those elected in each house to pass a bill to begin with! (Kentucky requires a majority of those present, provided that that majority is at least two-fifths of the number elected, in order to pass a bill (see Ky. Const. sec. 46), so requiring a majority of those elected to override a veto theoretically can make a difference.)
Now to be exact, the Arkansas Constitution requires "a majority of the whole number elected" of each house to override a veto (see Ark. Const. art. 6, sec. 15). But section 22 of Article 5 of the Arkansas Constitution states that, before being sent to the governor for his consideration, "no bill shall [be passed] unless . . . a majority of each house be recorded thereon as voting in its favor." The question becomes: Is the "majority" mentioned in Art. 5, sec. 22, a majority of those present or of those elected? According to the Supreme Court of Arkansas, this section requires a majority of those elected (see Smith v. Ridgeview Baptist Church, 514 S.W.2d 717, 718 (1974)). In other words, just like all of the other states that require a simple majority to override a veto (with the exception of Kentucky), that number needed to override is the exact same number required to pass a bill in the first place!
On paper, as the title of this post suggests, the presence of an executive in the legislative process seems superfluous in these states. One would think that, if 50% plus 1 of each house of a state's legislature is needed to pass a bill, and the same number is needed to override a veto, then a governor's veto should never be successful. But that is not the case. In Arkansas, Governor Mike Beebe, since taking office in 2007, has issued eleven vetoes (not counting one line item veto). Of those vetoes, only the two most recent ones involving extreme restrictions on abortion rights (HB 1037 and SB 134) were overridden by the legislature, and even then, both bills lost votes between the two stages!
I guess it's due to the fickle nature of politics that these states maintain an executive presence in the legislative process.