How Should Congress Continue To Govern During The Coronavirus Pandemic? Here’s What The Experts Say
Remote voting might not be entirely constitutional, according to R Street Institute senior fellow James Wallner.
“It violates the spirit, if not the letter, of the constitution,” he told the DCNF.
The whole point of Congress, Wallner said, is to assemble together in the same place in order to conduct the business of the nation. He added that safety and responsibility “must be considered alongside the constitution obviously, but they can’t ended up themselves be grounds to violate the constitution.”
“If that’s the case, then the constitution means nothing,” he said. “I think that’s very important to keep in mind. Certainly there are concerns and safety concerns and health concerns associated with this, and I think trying to figure out how to balance those concerns and how to protect against them is critical. But it’s not impossible.”
Wallner pointed out that there are several provisions in the Constitution that suggest remote voting, or a virtual presence, is not sufficient.
“For example,” he wrote in a March 26 LegBranch piece with Timothy LaPira, “the Constitution stipulates that Congress must assemble at least once a year. And it bars the House and Senate from meeting in a different location from that at which they sit presently. While the Congress has met in various places in its history, including Philadelphia and New York City, its members had to first physically congregate in the same place before they could approve meeting in a different location.”
“The Constitution assumes that members must travel to the same location and protects them from arrest “during their Attendance at the Session of their respective Houses, and in going to and returning from the same,” he continued.
Grappling with the dangers of nationwide sickness is not a “new thing for Congress,” Wallner added, pointing out that Congress faced similar challenges during the 1793 Philadelphia Yellow Fever epidemic. At the time, Philadelphia had about 50,000 to 55,000 residents, Wallner said, and while 20,000 of those residents fled the city, another 5,000 died during the epidemic.
“So this is a very serious thing,” Wallner said. “Congress had adjourned in June of that year, but pursuant to the constitution, they were scheduled to come back in December.”
Former President George Washington’s cabinet was still meeting in Philadelphia at the time, Wallner said, and the president wrote to constitutional expert and former President James Madison for advice on what to do and whether he had the constitutional power to convene Congress in a different location during the dangerous epidemic.
“Madison said, no, you don’t have that authority,” Wallner said, adding that Madison advised Washington to write to members of Congress, warn them about the situation in Philadelphia, and suggest that Congress meet in another location as a recommendation. “Then Congress would have to assemble and decide if that is where, in fact, they wish to meet,” Wallner said.
“Congress can only act when Congress is together,” he said. “And so it’s Congress’s decision on where it meets, when it meets and what kind of rules it follows when it does meet. But in order to make those decisions, it has to actually convene itself.”