Can a Legislature administer itself?

October 15, 2014 11:38 PM

Since the Doctrine of Ultra Vires depends on administrative law which is derived from a Legislature, can a legislature administer itself? If a Constitution Convention is ever triggered under Article V, would the Doctrine of Ultra Vires apply and prevent the convention from introducing drastic new changes to the Constitution rather than addressing a specific proposed amendment?
posted by CollectiveMind to Law & Government (10 answers total)

I think the limiting factor on a Constitutional Convention is that it would propose amendments, which would still have to be ratified by 3/4ths of the state legislatures.

It isn't a wide-open opportunity to run rampant rewriting the Constitution. It's simply a mechanism to bypass Congress's role in proposing amendments to the Constitution.
posted by Chocolate Pickle at 5:25 AM on October 16, 2014

Yeah, it's the state legislatures that would ratify, not the US Congress. And since this activity is specifically delineated in the Constitution, it is not ultra vires.
posted by exogenous at 6:12 AM on October 16, 2014 [1 favorite]

It didn't stop the 1787 convention from writing a new constitution even though they had no authority to do so. And it didn't stop the US from approving the new Constitution in clear violation of the Articles of Confederation... that is, entirely illegally.

If the states ever triggered a convention under Article V, you should worry that the entire US Constitution might be scrapped. Either plainly and simply as in 1787, or by proposing an "amendment" that deletes the entire text and replaces it with something else.
posted by ROU_Xenophobe at 7:38 AM on October 16, 2014 [1 favorite]

ROU_Xenophobe: It didn't stop the 1787 convention from writing a new constitution even though they had no authority to do so. And it didn't stop the US from approving the new Constitution in clear violation of the Articles of Confederation... that is, entirely illegally.

Is that a commonly accepted legal viewpoint?
posted by IAmBroom at 8:52 AM on October 16, 2014

Is that a commonly accepted legal viewpoint?

No.

...or by proposing an "amendment" that deletes the entire text and replaces it with something else.

The chance of this being ratified by 38 states is nil.
posted by Chocolate Pickle at 9:40 AM on October 16, 2014 [1 favorite]

Thank you, Chocolate Pickle, which brings to the front something I was vaguely thinking: If the people called a Constitution Convention via Article V, and said CC issued a complete and total rewrite of the COTUS, and the people accepted it without mass rebellion... the new Constitution would be entirely legally formed, under the precept that government's rightful power flows from the people.
posted by IAmBroom at 9:48 AM on October 16, 2014

Response by poster: So an absence of opposition from the people equals acceptance by and thus conveyance of power from the people?
posted by CollectiveMind at 10:24 AM on October 16, 2014

A lot of problems here.

Ultra Vires predates Admininstrative Law by centuries. So it does not so eminate.

The power for the House and Senate to set their own rules is enumerated in Article I, so yes they can.

The Constitution may be amended in any way amenders see fit, as long as it is passed.

And no, the Articles of Confederation do not control anything and the Constitution was legal.
posted by Ironmouth at 11:38 AM on October 16, 2014 [1 favorite]

So an absence of opposition from the people equals acceptance by and thus conveyance of power from the people?

Any amendment proposed by a CC would become a local political issue in each state, and the more radical the amendment, the more contentious the local controversy. Members of the state legislature are elected and generally want to be reelected in the next election, and if such an amendment was very popular or very unpopular, the members of the state legislature would definitely take that into account. (Ignoring the popular will virtually guarantees defeat in the next election.)

So this process is not really divorced from opinions of voters. As a practical matter, an amendment proposed by a CC (or, for that matter, an amendment from Congress) can only really be ratified if the majority of voters want it to be. The "3/4ths of the states" threshold is very high.

IAmBroom, yes, in that case it would be legally formed. But that is a really farfetched scenario and difficult to judge, because it would take a really amazing circumstance at the federal level for the people of the nation to become so disenchanted with the existing system that they were willing to trash it all and start over.

That did happen in 1787, because the Articles of Confederation (which had only been in force for a few years) were widely viewed as having been a failure. For it to happen now is pretty much inconceivable.
posted by Chocolate Pickle at 1:06 PM on October 16, 2014 [1 favorite]

Chocolate Pickle: But that is a really farfetched scenario and difficult to judge, because it would take a really amazing circumstance at the federal level for the people of the nation to become so disenchanted with the existing system that they were willing to trash it all and start over.

That did happen in 1787, because

Well, yes: unimaginably unlikely in our current context, but the historically recent example of 1787 makes my point, I think. The hypothesis is true in a practical sense.

CollectiveMind: So an absence of opposition from the people equals acceptance by and thus conveyance of power from the people?

Damn straight, Skippy. Look how hard approximately half the people in the US are opposing the ACA ("Obamacare"), and that is about 0.1% as much change as scrapping and rewriting the COTUS would be.
posted by IAmBroom at 9:44 AM on October 17, 2014