Article I

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An Uncertain Privilege: Reexamining the Scope and Protections of the Speech or Debate Clause

Issues Volume 50, Issue 2

By Philip Mayer

The Speech or Debate Clause of the United States Constitution was put in place to protect and preserve the independence of the legislative branch. The United States Supreme Court has consistently read the Clause broadly to effectuate this purpose, and it has applied the Clause’s protections absolutely to ensure that legislators are not questioned by a hostile executive or judiciary in regard to their legislative activities. In recent years, a circuit split has developed regarding whether the Clause provides for a documentary non-disclosure privilege, which would shield legislators from subpoenas or search warrants issued by the executive branch and enforced by the judiciary. The Ninth and Third Circuits have rejected such a documentary non-disclosure privilege, while the D.C. Circuit has consistently reaffirmed its commitment to a broad documentary non-disclosure privilege. Adding further uncertainty to the Clause’s protections, the Ninth Circuit has also denied the Clause’s protections to legislators involved in negotiations about future legislation. In order to provide clarity to the Clause’s privileges, the Supreme Court should adopt a limited documentary non-disclosure privilege and should apply the Clause’s protections to non-criminal negotiations in anticipation of future legislation.

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Back to Good: Restoring the National Emergencies Act

Issues Volume 54, Issue 3

By Samuel Weitzman

As amended after the Supreme Court’s decision in Immigration & Nationality Services v. Chadha, the National Emergencies Act (NEA) vests the President with crisis powers that cannot be terminated or taken away even by majorities in both Houses of Congress. President Donald Trump’s 2019 declaration of a “national emergency” at the southern border of the United States as a pretext to secure funding for his border wall with Mexico threw into sharp relief the perils and shortcomings of this imbalanced arrangement. This Note argues first that the President lacks any inherent emergency powers; any such powers that might exist belong to Congress and are within Congress’ discretion to delegate to the President. In turn, this Note contends that the post-Chadha change to the emergency termination procedure undermined the statute’s basic efficacy in service of formalist constitutional theory. Under a revisionist, functionalist reading of Chadha, the original emergency termination procedure was constitutionally permissible as a political legislative veto. Alternatively, the recently proposed ARTICLE ONE Act would help to return the NEA to its original role of constraining executive use of emergency authorities.

Short of a Full House: The Increasing Length of Vacancies in the U.S. House of Representatives, 1997–2021

Issues Volume 56, Issue 3

By Tyler Ritchie

Members of the U.S. House of Representatives provide the most immediate and localized connection between their constituents and the federal government. When those positions are left vacant for extended periods of time, Americans are deprived of an agent to advocate for their interests at the national level. Article I of the Constitution gives state executives authority to set dates for special elections to Congress. In some instances, governors have taken advantage of this nearly unlimited power to deny these seats to their partisan rivals. This Note presents the data from every open seat in the House over twenty-five years and shows that the average vacancy has become substantially longer during that period—almost twice as long on average. This Note then uses the seat in the 20th District of Florida, which was left open for 287 days in 2021 and 2022, as a case study to show the negative impacts of such vacancies. To avoid these increasingly common outcomes, this Note urges the adoption of an upper limit on the length of a vacancy in the House of Representatives. Article I also provides the U.S. Congress with authority to overrule the states and pass laws to regulate the times of congressional elections. Congress should use this power to pass a new law regulating vacancies. Such action is necessary to address potentially severe harms to representative democracy.

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