Three House Republicans filed a lawsuit Tuesday against Speaker Nancy Pelosi, D-Calif., after she enforced a mask mandate against them. The three—Reps. Thomas Massie, R-Ky.; Marjorie Taylor Greene, R-Ga.; and Ralph Norman, R-S.C.—had fines deducted from their salaries after refusing to wear masks on the House floor.
Among their claims is an unusual one: that the mask rule violates the 27th Amendment to the Constitution.
That amendment (sent to the states with the original Bill of Rights in 1789, but was not ratified until 1992) reads: “No law, varying the compensation for services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”
The plaintiffs argue that the mask rule violates the amendment because deducting a fine from their salaries varies their compensation downward.
Is their claim a winner? Almost certainly not.
As a new paper I cowrote with Heritage Foundation colleague Paul J. Larkin Jr. explains, the 27th Amendment’s reach is not nearly as broad as the plaintiffs claim. (The Daily Signal is the news outlet of The Heritage Foundation.)
For one thing, the amendment applies only to “laws.” In that context, “laws” are only bills that have passed both houses of Congress and have been signed by the president or which Congress passes by supermajority following a presidential veto. House rules do not apply.
A clever lawyer might respond by pointing to the First Amendment, which says, “Congress shall make no law respecting the establishment of religion, [etc.],” and note that the Supreme Court has interpreted the word “law” in that context to broadly encompass any government action. Why doesn’t the same meaning apply to the 27th Amendment?
For two reasons. First, the text and history of the 27th Amendment foreclose that expansive definition. The amendment does not exist in isolation. Rather, it amended the ascertainment clause, which says: “Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”
The word “law” in that clause can only mean a bill passed by both houses and signed by the president, because that clause is concerned simply with the legislative mechanics of paying members of Congress. Who has the power of the purse? Congress. How does Congress exercise that power? By passing bills.
The word “law” in the 27th Amendment has the same meaning because the amendment sets conditions on bills passed pursuant to the ascertainment clause.
The second reason that the expansive First Amendment definition of “law” doesn’t apply to the 27th Amendment is because the two have totally different purposes. The former protects individual rights; the latter sets conditions on a particular legislative procedure.
The moral of the story is that when the 27th Amendment refers to “laws,” it means only laws in the technical sense. House rules don’t count because they aren’t passed by both houses of Congress and signed by the president.
There’s another reason the plaintiffs’ case will likely fail. The House rules don’t “vary compensation.”
As with “law,” the meaning of “varying compensation” is revealed when we look at the amendment’s relationship to the ascertainment clause. Because the 27th Amendment modifies that clause, what it means by “varying compensation” is changing the terms of a previous compensation law.
So, to sum up, the 27th Amendment applies only to laws that change the terms of previous compensation laws.
The House rules don’t change the terms of a previous compensation law any more than getting a parking ticket changes the terms of your paycheck.
The plaintiffs’ 27th Amendment claim appears doomed, but we can forgive them for trying it. Before our paper came along, nobody had spent any time trying to figure out what the 27th Amendment means and how it should be applied.
What’s more, in past lawsuits over the amendment, parties have made similar claims to the ones Massie, Greene, and Norman make here, and the courts either dismissed them on procedural grounds or did not interpret the amendment with the sort of depth and clarity that it deserves.
Although the plaintiffs’ claim is likely a dud, for those of us who love thinking about the Constitution, it’s a delightful opportunity to ponder a part of it that almost never appears in headlines.
This piece originally appeared in The Daily Signal