Posted by: captainfalcon | December 22, 2009

Constatutional Law

I lurk on the UCLA conlawprofs listserv. A contributor – Seth Tillman – just pointed to an interesting provision in the Health Care Bill: “[I]t shall not be in order in the senate or the house of representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

The listserv people have been debating (a) what would actually happen if, after a bill containing this provision became law, a future Congress tried to change the specified subsection and (b) whether a statute can promulgate a rule binding on Congress. A point that hasn’t been raised, but seems interesting, is that if a provision like this is legally valid then Congress has the (hitherto unrecognized?) power to pass “constatutional law.” A constatutional law is one that can only be repealed by Constitutional amendment, but that is not functionally equivalent to a Constitutional amendment (inasmuch as, unlike a Constitutional amendment, it can be unconstitutional, and be declared legally invalid for that reason).

The fact that constatutional law is not constitutional law obviates one promising objection to its legal validity – that Congress doesn’t have the power to amend the Constitution but effectively does so when passing constatutional law. Are there other promising objections?


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