On Being Noticed During a Pandemic

April 15, 2020

Seth,

I just finished your paper on the Model Continuity of Congress Statute, and wanted to reach out. I’ve always really enjoyed reading your work and, like you, am fascinated by the “overlooked” parts of Article I.

I work for [U.S.] Senator ---- from ----, who [is closely involved in] chang[ing] the Senate Rules to allow temporary remote voting during a period of extraordinary national crisis. My colleague ---- and I are currently working on a report answering questions about the constitutional, procedural, practical, and technological posed by remote voting.

Given your work on the Model Statute, I wanted to see if you would be available to talk more about the constitutional implications of remote voting, including originalist understandings of things like the quorum clause, meetings of Congress clause, and the rules clause. We’ve been kicking the tires on some things and would love to get your perspective.

Thanks so much and hope to hear from you soon.

-/s/

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April 16, 2020, 9:29 PM

Dear ---- and ---- (if I may):

I am sorry it has taken me a day to get back to you. I have been involved with ----- and family, and I only have now seen your e-mail. I am sorry the circumstances are so bad that my continuity-of-Congress work [from circa 2006] has become relevant, but given the circumstances, I want to do anything I can to help you and your colleagues do your very important work. I live in Ireland—some 5 hours ahead of DC time. I am free now Thursday, 10:25 PM Irish time, and I will be up for another hour or so. I will also be available tomorrow (Friday) during business hours (Irish time), and on Sunday, and next week.

My mobile number is -----------

Seth

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My Model Continuity of Congress Statutes starts with: 

An Act to Maintain the Continuity of Congress and the People’s Representation in Government during a National Crisis

Whereas an emergency arising from war, terrorism, the outbreak of disease, or for any other reason, may give rise to the death or to the unexplained absence of congressional members or to their inability to attend, thereby precluding a single house of Congress from reaching or maintaining a quorum, but leaving its sister house with a quorum ....

Seth Barrett Tillman, Model Continuity of Congress Statute, 4 Pierce L. Rev. 191 (2006); 4 U.N.H. L. Rev. 191 (2006), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=891560>; 

Sanford Levinson, Comment, Assuring Continuity of Government, 4 Pierce L. Rev. 201 (2006); 4 U.N.H. L. Rev. 201 (2006), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=900607>; 

Seth Barrett Tillman, Overruling INS v. Chadha: Advice on Choreography: A Reply to Professor Sanford Levinson, 4 Pierce L. Rev. 207 (2006); 4 U.N.H. L. Rev. 207 (2006), <http://papers.ssrn.com/abstract=900589>; 

Seth Barrett Tillman, Judge Wyzanski on the Scope of the President’s Adjournment Power, New Reform Club (Apr. 17, 2020, 2:59 AM), <https://reformclub.blogspot.com/2020/04/judge-wyzanski-on-scope-of-presidents.html>; 

Letter from Seth Barrett Tillman to Professor Anonymous, The Quorum Clause (July 2, 2014), <http://ssrn.com/abstract=2462012>; 

and, 

Letter from Seth Barrett Tillman to Jimmy Y T MA, Counsel to the Legislature, Hong Kong Special Administrative Region of the People's Republic of China, Counting Quorums (July 16, 2014), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2465548>. 

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Seth Barrett Tillman, On Being Noticed During a Pandemic, New Reform Club (Apr. 19, 3:44 AM), <https://reformclub.blogspot.com/2020/04/on-being-noticed-during-pandemic.html>; 

Judge Wyzanski on the Scope of the President’s Adjournment Power

The President has suggested that he can adjourn Congress and cause a constructive recess, which would allow him to fill vacant positions during the recess. The question of the scope of the President’s adjournment power has been discussed in prior judicial materials. For example, Judge Wyzanski explained:

[T]here remains the difficult problem as to whether the first session of the 80th Congress has already been brought to a close not by concurrent resolution, by act of Congress or by the Twentieth Amendment, but by the action of Congress in reconvening on November 17 pursuant to the Proclamation of President Truman issued on October 23, 1947, No. 2751. 12 Fed. Reg. No. 210; Oct. 25, 1947.

Article II, § 3, of the United States Constitution provides that the President ‘may on extraordinary occasions, convene both Houses, or either of them.’ This is language of unusual breadth. It is not limited to the situation where a particular Congress has never met in session, or where a Congress has met and adjourned sine die. It also covers the situation where Congress or either House is not meeting because it is in recess under a temporary adjournment.

If the President convenes a Congress that has never met, of course, he is convening it in a new session, which is called in the proclamation an ‘extra’ session. See e.g. Proclamation of President Hoover, March 7, 1929, 46 Stat. 2981. If the President convenes a Congress that has met but adjourned sine die, he is likewise convening it in a new session, which is called an ‘extra’ session. See e. g. Proclamation of President Roosevelt, Sept. 13, 1939, No. 2365, 54 Stat. 2660. But in the case at bar we are faced with a situation where when the President issued his proclamation Congress had met and adjourned only temporarily. Is the reconvening of Congress pursuant to the President’s call automatically the beginning of a new session and the close of an old session? Jefferson evidently thought it would be. § 51 of his Manual states that if Congress is ‘convened by the President’s Proclamation, this must begin a new session, and of course determine the preceding one to have been a session.’ This manual is, of course, entitled to great weight because since 1837 it has been, by virtue of a still effective rule of the House of Representatives, governing authority in that House in all cases where there is no conflict with the standing rules and orders of that House. House Rule 43, House Document #810, 78th Congress, 2d Sess. See Congressional Record, 80th Cong., 1st Sess., 36.

On the other hand, the present Parliamentarian of the House and Secretary of Senate have considered the reassembling of the Congress on November 17, 1947, as a continuation of the first session. In their judgment no extra or special session has begun. And their view is finding expression every day in the pagination of the Congressional Record and in like official Congressional documents. Congress so far has apparently acquiesced in this action of its delegates; though the matter does not appear to have been debated.

Moreover, the view of these officers of Congress is not in conflict with any specific language of President Truman’s Proclamation. Unlike the Proclamations of Presidents Hoover and Roosevelt already cited, the Proclamation of President Truman dated October 23, 1947, does not refer to an ‘extra’ session which will result from the convening of Congress pursuant to the President’s call.

It is unnecessary for me in the case at bar to decide which of these conflicting views is correct. Even if Jefferson’s manual is correct, the new amendment to the Rules cannot go into effect prior to February 17, 1948. It is quite possible that before then Congress by legislative action will conclusively remove any ambiguity as to the proper numerical description of its present session, or will more explicitly provide a date when the new amendments to the rules shall go into effect. And it seems to me fitting for a judge not to decide a controversy which has no present importance and may become moot by legislative action.

Ashley v. Keith Oil Co., 7 F.R.D. 589, 591–92 (D. Mass. 1947) (Wyzanski, J.) (emphasis added).

As Wyzanski’s opinion above indicates, President Trump’s position is not frivolous; rather, it is supported by some of our best parliamentary authority: Jeffferson’s Manual. In short, the merits of the President’s position remain unclear—the question remains one for the courts to decide. And if anyone tells you otherwise, and tells you the issue is clear, settled, or obvious …. 

---- 

Jefferson’s Manual at Section 51:

Congress separate in two ways only, to wit, by adjournment, or dissolution by the efflux of their time. What, then, constitutes a session with them? A dissolution certainly closes one session, and the meeting of the new Congress begins another. The Constitution authorizes the President, “on extraordinary occasions to convene both Houses, or either of them.” I. 3. If convened by the President’s proclamation, this must begin a new session, and of course determine the preceding one to have been a session. So if it meets under the clause of the Constitution which says, “the Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.” I. 4. This must begin a new session; for even if the last adjournment was to this day the act of adjournment is merged in the higher authority of the Constitution, and the meeting will be under that, and not under their adjournment. So far we have fixed landmarks for determining sessions. 

Seth

Seth Barrett Tillman, Judge Wyzanski on the Scope of the President’s Adjournment Power, New Reform Club (Apr. 17, 2020, 2:59 AM), <https://reformclub.blogspot.com/2020/04/judge-wyzanski-on-scope-of-presidents.html>; 

Tillman on Legal Development in the Common Law System

Dear Chief Rabbi: 

In light of the current pandemic ... can I ask you and your colleagues to reconsider the question of whether during week days (including Chol HaMoed), a “minyan” could meet virtually using technology? Please consider the query in the alternative: [1] using technology such as Zoom, where the 10 participants could see and hear one another; and, [2] using less advanced technology, where the 10 participants can only hear one another. 

It might be helpful to consider that even in normal circumstances, when a minyan’s 10 members are in one another’s physical presence, we regularly count persons using hearing aids & other similar implants. A minyan meeting remotely might be considered an extension of principles already regularly adhered to as a matter of common practice. 

Hoping you and your family are enjoying the last days of Passover,

Seth

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law 

(academic affiliation for identification purposes only)

Seth Barrett Tillman, ‘Purim & My Bangladeshi Friend,’ in Gadfly: Culture that Matters (Feb. 11, 2013), <http://www.gadflyonline.com/home/index.php/purim-my-bangladeshi-friend/>. 

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Seth Barrett Tillman, Tillman on Legal Development in the Common Law System, New Reform Club (Apr. 13, 2020, 8:54 AM), <https://reformclub.blogspot.com/2020/04/tillman-on-legal-development-in-common.html>; 

Dear Supreme Court Administrator,

Here is a link to a PDF of a judgment/opinion recently reported by the High Court of Australia:

<http://eresources.hcourt.gov.au/downloadPdf/2020/HCA/12>.

You will notice that in the header of each page, the court reporter lists the Justices who joined the particular judgment/opinion beneath. That is very helpful to the reader. You might ask the Chief Justice, the Associate Justices, and your administrative colleagues to consider adopting such a reader-friendly policy.

I note that when cases have lengthy judgments, no majority opinion, multiple opinions in support of the final order, multiple concurrences, and multiple dissents, the confused reader has to constantly scroll to the top of each opinion to figure out who supported what. This reform (merely to presentation) would help all—particularly law students. (Of course, it would only work, if every opinion starts on its own separate page.)

Seth

Seth Barrett Tillman, Dear Supreme Court Administrator, New Reform Club (Apr. 7, 2020, 4:17 AM), <https://reformclub.blogspot.com/2020/04/dear-supreme-court-administrator-here.html>; 

An Example of How to Write With Perfect Clarity on a Difficult Subject

Did you notice that word ‘first’, which Milton slipped in there [in the opening lines of Paradise Lost], ‘man’s first disobedience’? It is terribly misleading. Since Adam had no knowledge of good or evil before tasting the fruit, his ‘disobedience’ in tasting it could not be sinful or wrong, because sin implies prior knowledge of good and evil. Sin was not the cause of the [expulsion from Eden]—that is illogical and self-contradictory—it was the result or concomitant of the [expulsion]. . . . [S]in was the result or concomitant of the acquisition of self-consciousness, whereby man was separated from the rest of creation to share with God in the knowledge of good and evil.

R. Enoch, The Forbidden Tree, in Wrestling with the Angel 122, 124 (London, Sheldon Press 1977).

Seth Barrett Tillman, An Example of How to Write With Perfect Clarity on a Difficult Subject, New Reform Club (Apr. 3, 2020, 10:12 AM), <https://reformclub.blogspot.com/2020/04/an-example-of-how-to-write-with-perfect.html>. 

Why Strict Cabinet Succession Is Always Bad Policy: A Response to Jack Goldsmith and Ben Miller-Gootnick

Seth Barrett Tillman*

In their Lawfare post, Jack Goldsmith and Ben Miller-Gootnick[1] put forward the traditional argument that legislative officer succession, as permitted by the Presidential Succession Act of 1947, leads to undesirable and destabilizing changes in party control. Quoting a report of the Continuity in Government Commission, Goldsmith and Miller-Gootnick wrote:

[A] “political zealot might seek to change the party in the executive branch with a single attack,” or a “freak accident might lead to a sudden change in party” that controlled the presidency. [The report] added that “if a Congressional leader not from the President’s party were to assume the presidency, it could lead to a destabilizing change of party for the federal government.” As a result of these factors, the commission recommended (among other things) removing congressional leaders from the statutory line of succession.[2]

This is the long-standing policy objection which is put forward against both the 1947 Act and its 1792 predecessor. My limited goal here is to illustrate why that policy objection is wrong; in fact, it is dangerously misguided. 
       If the substantial risk policy makers were preparing against is the lone gunman or bomber, then legislative officer succession is a mistake. It incentivizes criminals and terrorists seeking to change party control. But that is not the substantial risk we face, and it was not the substantial risk which (I believe) animated President Truman’s recommendation to Congress to shift from cabinet succession, under then then in-force 1886 Act, to legislative officer, under the 1947 Act. Truman was and remains the only President to launch a nuclear attack on an enemy nation during war time. Truman’s concern was to prepare the United States for a decapitating attack by a state (or state-like actor) with nuclear weapons—i.e., an attack wiping out the entire line of cabinet succession under the 1886 Act. And if that was not in fact Truman’s actual subjective concern in 1947, then that type of risk ought to be our primary policy concern today when we tinker with the line of presidential succession. Indeed, I might add, the consequential political risk of decapitation by pandemic is in many ways substantially similar to the risk of a nuclear attack. Goldsmith and Miller-Gootnick worry that a lawsuit among rival claimants might be destabilizing. As bad as such a result is, the rival claimants will have some non-frivolous legal claim to the presidency, and one of the claimants will (one expects) eventually prevail in the courts. But with cabinet succession, once the entire line of succession is wiped out, there will be no claimants with any legitimacy, and intervention by the courts (if it could be had at all) will satisfy no one but the winners.

           Legislative officer succession is entirely different.

If the presiding legislative officers in the line of succession were killed, new ones could be chosen by the two houses of Congress—by simple majority action. If the two houses were wiped out, their membership could be reconstituted reasonably quickly, and then the newly reconstituted membership could choose new presiding officers, who would have legitimate claims to the presidency. The Senate could be speedily reconstituted by gubernatorial appointments. And vacant House seats could be filled by by-elections held under extant state laws. Indeed, as long as there is a rump House after a decapitating attack on the United States, the reduced body could choose a new presiding officer because, under established precedents, a quorum of the House is not a majority of all authorized seats, but a majority of all living members.[3] Legislative officer succession is flexible. It permits the future to care for itself. Cabinet succession is attractive until it fails—and, when such a catastrophic failure occurs, recovery by lawful means is not possible. Congress cannot amend the succession regime except by statute, and to amend statutes you need a President.

Again, the argument for strict cabinet succession is that it preserves party continuity. But that position simply does not, and never could, withstand serious scrutiny. Strict cabinet succession fails to preserve party continuity in the event that the incoming President and Vice President are killed (or otherwise unable to qualify for any reason) any time between the date of the general popular election until the new President’s first cabinet officer is confirmed. That is more than several months. In such a situation, the acting presidency will fall to the first cabinet officer in the line of succession from the outgoing administration. Such an officer may be part of an administration and party that has been thoroughly rejected at the polls—in primaries or in the general election.

But wait, it gets worse. Much worse. If the President and Vice President were killed any time between inauguration day and prior to the confirmation of the new President’s first cabinet officer, then there would be no officers in the line of succession because the cabinet officers from the prior administration will either have resigned or have been removed (by the outgoing President) prior to inauguration day. Alternatively, if one or more cabinet officers from the prior President’s cabinet have remained in office, then again, that officer may be from a party different from the newly elected administration.

In short, the argument that strict cabinet succession avoids destabilizing changes in party control is a pig in a poke. It is madness to pretend otherwise—particularly where the stakes are so high.

The chief purpose of legislative officer succession is a Burkean effort to enlist the surviving institutions of government—the House and Senate—in recreating those institutions which have failed (i.e., the presidency). And even if the House and Senate chambers were destroyed and all their members killed in a natural catastrophe or act of war, the membership could be replaced in a reasonable time under well-established legal rules. This is not so for a strict cabinet succession regime: once it and the President and Vice President are gone, it is beyond our ability to effect timely and legally valid repair.[4]

I offer this as a compromise and partial solution: keep legislative officer succession—but append it to the end of the line of succession, following cabinet succession. Furthermore, cabinet members should only succeed and be allowed to retain the presidency during the term of the President which appointed them. I suggest that would capture the best of both succession regimes: cabinet officer succession and legislative officer succession. I am not the first person to suggest a solution along these lines. In 2004, in testimony before a House of Representatives committee, Professor Akhil Amar, who is the nation’s most prominent academic opponent of legislative officer succession, stated:

I do think in very, very highly unusual situations where you really try to have Cabinet succession, officer succession, and everyone’s gone, I think only a real constitutional zealot, maybe without good judgment, would say you can’t have congressional leaders in that circumstance because the Constitution really isn’t a suicide pact, and so I think I appreciate sort of the prudence involved there.[5]

I agree with Professor Amar. The only difference between Professor Amar’s position and my own is what he characterizes as “highly unusual situations” is, in my view, the world that we live in. That is the world which should animate our policy-makers. And that has been our world since Hiroshima, 9/11, and COVID-19.

[END]

Seth Barrett Tillman, Why Strict Cabinet Succession Is Always Bad Policy: A Response to Jack Goldsmith and Ben Miller-Gootnick, New Reform Club (Apr. 3, 2020, 2:44 AM), <https://reformclub.blogspot.com/2020/04/why-strict-cabinet-succession-is-always.html>; 

Seth Barrett Tillman, Why Strict Cabinet Succession Is Always Bad Policy:A Response to Professor Jack Goldsmith and Ben Miller-Gootnick, Harv. Nat’l Sec. J. Online (Apr. 8, 2020), <https://harvardnsj.org/wp-content/uploads/sites/13/2020/04/Tillman_Why-Strict-Cabinet-Succession-Is-Always-Bad-Policy.pdf>, <https://ssrn.com/abstract=3562262>.

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* Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).

[1] See Jack Goldsmith & Ben Miller-Gootnick, A Presidential Succession Nightmare, Lawfare (Mar. 25, 2020, 1:38 PM), <https://www.lawfareblog.com/presidential-succession-nightmare>.

[2] Id. (quoting Continuity of Government Commission’s report).

[3] See, e.g., Rules of the House of Representatives 116th Cong. (2019), <https://rules.house.gov/sites/democrats.rules.house.gov/files/documents/116-House-Rules-Clerk.pdf> (Rule XX[5](c)(7)(B): “The term ‘whole number of the House’ means the number of Representatives chosen, sworn, and living whose membership in the House has not been terminated by resignation or by the action of the House.” (emphasis added)). The position of the Senate is less clear. See Standing Rules of the Senate 113 Cong. (2014), <https://www.rules.senate.gov/imo/media/doc/CDOC-113sdoc18.pdf> (Rule VI[1]: “A quorum shall consist of a majority of the Senators duly chosen and sworn.”).

[4] See Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285, 337–40 & nn.81–84 (2013), <https://ssrn.com/abstract=1622441>.

[5] Presidential Succession Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 108th Cong. 52 (2004). See, e.g., John C. Fortier & Norman J. Ornstein, Presidential Succession and Congressional Leaders, 53 Cath. U. L. Rev. 993, 1006 (2004) (“Finally, one should consider the case of a terrorist attack that kills the President-elect and Vice President-elect shortly before they take office. In all of these cases, Cabinet succession is impossible, because the new Cabinet (that of the President-elect) is officially nominated and confirmed only after the new President takes office.”); Joel K. Goldstein, Akhil Reed Amar and Presidential Continuity, 47 Hous. L. Rev. 67, 90 (2010) (“If there is no President-elect or Vice President-elect, there is no incoming Cabinet. The only Cabinet is the outgoing one, which may be associated with an administration just rejected at the polls. It would make no sense to designate an outgoing Cabinet officer as acting President.”). 

Can the Oireachtas Legislate During the Pandemic?

Glossary
Ceann Comhairle [presiding officer of the lower and popularly elected house]

Oireachtas [the Irish Parliament]

Taoiseach [the Prime Minister]

Seanad Éireann or Seanad [the upper house or senate]

Dáil Éireann or Dáil [the lower and popularly elected house] 
Bunreacht na hÉireann [the Irish Constitution] 

Seán Ó Fearghaíl, the Ceann Comhairle, has informed his colleagues, that in light of “a very serious constitutional problem,”[1] the Seanad will be unable to pass legislation after Sunday. He is supported by advice offered from the Attorney General and the Secretary General of the Department of the Taoiseach.[2] The single argument which has been put forward in public in support of the Ceann Comhairle’s position is not entirely frivolous. It is the sort of argument beloved by legal academics giving final examinations based on fictitious fact patterns. Such arguments usually do not play prominent roles in the legal advice offered by officers of state, senior law officers, and highly placed civil servants during national and international emergencies. I respectfully suggest the Attorney General has erred, and the Ceann Comhairle erred in relying on such advice.[3]

Article 18 of the Constitution provides: Seanad Éireann shall be composed of sixty members, of whom eleven shall be nominated members and forty-nine shall be elected members.[4] And, The nominated members of Seanad Éireann shall be nominated … by the Taoiseach who is appointed next after the reassembly of Dáil Éireann following [its] dissolution ….[5] Ireland has had a general election, but a newly appointed Taoiseach has not emerged from multiparty negotiations. Absent a new Taioseach, the Seanad will lack both its eleven nominated members and its full complement of sixty members. The argument runs that an incompletely constituted Seanad cannot meet and vote, and thus legislation—requiring action by both houses of the Oireachtas—cannot take place.

There are any number of problems with this argument.

First, Article 18 states how the Seanad should be constituted. It does not expressly state what are the consequences for failing to reach the aspirational ideal of sixty members. Nothing in the Constitution states if you do not have sixty members duly appointed and elected when the Seanad convenes, then the Seanad is precluded from meeting, voting, and enacting legislation. 

Second, the Irish Constitution’s text strongly implies that the Seanad may lawfully enact legislation in such circumstances. Article 15 states: The number of members necessary to constitute a meeting of either House for the exercise of its powers shall be determined by its standing orders.[6] Likewise, Seanad Standing Order 19(1) provides: The quorum necessary to constitute a meeting of the Seanad shall be six Senators.[7] Because 49 exceeds 6, because a quorum will be present, even if there are no Seanad members nominated by a newly appointed Taoiseach, the Seanad retains the power to lawfully meet, vote, and enact legislation.

Third, as the Irish courts have repeatedly explained, Ireland is a “sovereign and democratic”[8] state. The key word is “democratic”. If the unfortunate circumstances connected to the current pandemic had prevented the election of the forty-nine elected Seanad members, even if a quorum otherwise remained from the eleven nominated members, then that would be a matter of genuine constitutional concern. Such a rump Seanad would lack democratic bona fides. But where the Seanad only lacks its nominated members—that should be a matter of little or no consequence to a democratic state.

Fourth, if the Seanad meets, votes, and enacts legislation in these circumstances (in conjunction with the Dáil and the President), such legislation is very likely to be upheld by the courts. Legislators take an oath to uphold the Constitution. Their views on this contestable issue will receive deference from the courts. Their work-product is entitled to a presumption of constitutionality. Meeting, voting, and enacting legislation in these circumstances is not indicative of anything remotely approaching an objective or subjective clear disregard of constitutional norms. Additionally, as a matter of general parliamentary law, courts follow the so-called “enrolled bill rule.” That rule teaches that purported defects in legislative processes are not used by the courts to nullify legislation—as long as the presiding officers of the legislative chambers attest that the legislation has passed their respective houses. The Irish courts have not opined on this specific point of parliamentary law. However, the Supreme Court of Ireland has come close to adopting this position when vetting constitutional amendments.[9] Likewise, the Irish courts regularly cite foreign case law as persuasive. The enrolled bill rule is well established by the courts in other Western democracies.[10] I doubt it would be rejected here.

There is one final reason to reject the position put forward by the Attorney General and the Ceann Comhairle. The members of the Seanad get paid. That means they have to do work. And if the members of the Seanad embrace a let’s pretend legal argument to escape doing the work they told their constituents they would do, and they do so during a national emergency, then they all have to go. And if that social contract is not part of Bunreacht na hÉireann, then it ought to be. It really ought to be.

Seth

Seth Barrett Tillman, Can the Oireachtas Legislate During the Pandemic?, New Reform Club (Apr. 2, 2020, 9:52 AM), <https://reformclub.blogspot.com/2020/04/can-oireachtas-legislate-during-pandemic.html>.

The original article (which is much like what is posted here) appeared in the Irish Law Times, but it appeared in the ILT without footnotes. See Seth Barrett Tillman, COVID-19: Can the Oireachtas Legislate During the Pandemic?, 38(7) Irish Law Times 94 (2020), <https://ssrn.com/abstract=3561117>.

A response: Gerard Hogan (European Court of Justice Advocate-General, former Justice of the Irish High Court and Court of Appeal) & Hilary Hogan, Legal and Constitutional Issues arising from the 2020 General Election, 63 Irish Jurist (forth. circa June 2020) (manuscript at 23 & n.47, 25–26 & n.52, 36 & n.79), <https://ssrn.com/abstract=3587047>. 

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** Seth Barrett Tillman, Lecturer, Maynooth University Department of Law. Roinn Dlí Ollscoil Mhá Nuad. Harvard Law School JD (2000), cum laude; University of Chicago BA (1984), with honours.

[1] Hugh O’Connell, ‘“A very serious constitutional problem”—Politicians cannot pass any new laws after Sunday’ The Irish Independent (Dublin, 25 March 2020, 10:57 AM), <https://tinyurl.com/wcfw9py>.

[2] See id.

[3] I am not the only academic to arrive at this conclusion. See Oran Doyle and Tom Hickey, ‘Oireachtas can pass laws in the public interest without Taoiseach Seanad nominees’ The Irish Times (Dublin, 26 March 2020, 14:59 PM), <https://tinyurl.com/sr5vdou>.

[4] Article 18.1.

[5] Article 18.3.

[6] Article 15.11.3°.

[7] ‘Seanad Éireann Standing Orders Relative to Public Business 2017’ (Houses of the Oireachtas), <https://tinyurl.com/u8ucjde> accessed 29 March 2020.

[8] Haughey v Moriarty [1998] IESC 17, [1999] 3 IR 1, 32 (Hamilton, CJ).

[9] See Finn v Attorney General and Minister for the Environment [1983] IR 154 (SC) 164 (O’Higgins, CJ). See generally Oran Doyle, Constitutional Law: Text, Cases and Materials (Clarus Press 2009) 406–07 (“Although Barrington J [in the High Court in Finn] accepted that the courts could review such a flawed procedure [during passage in the Oireachtas], the dicta of the Supreme Court suggested that judicial intervention in such circumstances would not be permissible.”).

[10] See, e.g., Field v Clark, 143 US 649 (1892); Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 ER 279 (HL). It is doubtful that the Irish courts will find the United Kingdom decision (Edinburgh and Dalkeith Railway) particularly persuasive—as it is based on local and peculiar conceptions of parliamentary sovereignty having no parallel in Irish law. Albeit, as a historical matter, the enrolled bill, under English law, can be traced back to The Prince’s Case, 8 Coke Reports 1, 13b, (1605) 77 ER 496 (KB) and R v Countess of Arundel (1615) 80 ER 258 (Ch). By contrast, the more recent decision of the Supreme Court of the United States (Field v Clark) is founded on more general policy concerns tied to the separation of powers and good governance norms.