Top ten most common technical objections

Trick questions often brought up in committee testimony

1. The Compact illegally binds future legislatures because they cannot withdraw from the Compact. a. This question deals with legislative entrenchment b. See question 10 in the Legal FAQ c. Quick answer – until 38 states join, any state can withdraw at any time. The entrenchment that exists after 38 states join is limited to as few as six weeks (to allow the convention to be organized and adjourned) and no longer than April 12, 2021, when the Compact self-repeals. Such limited entrenchment is typical of hundreds of interstate compacts and has been upheld by the Supreme Court.

2. States cannot limit the convention to an up/down vote on a pre-drafted amendment a. See questions 3 & 4 in the Legal FAQ b. Quick answer – a convention is bound by the rules of the organizers. In the case of the CBB, the states, the delegates, and Congress have all agreed in advance that the convention will be limited to an up/down vote on the BBA. 3. Former U.S. Supreme Court Chief Justice Warren Burger and current Justice Antonin Scalia oppose a Constitutional Convention. a. This question only tells half the story. i. Yes, both Justices believe that a convention organized for the purpose of rewriting the Constitution would be a complete waste of time. ii. In contrast, they both believe that states should consider amendments one at a time to solve specific problems. They do not believe that a convention to consider a single amendment would fall into the category of a “Constitutional Convention”.

4. Article I Section 10 of the Constitution requires the states get consent from Congress before they can enter into the Compact. a. The Supreme Court has ruled that the Article 1 Section 10 Compact Clause does not apply to those compacts where states are organizing to deploy a sovereign power that is a state power to begin with without threatening federal supremacy in regard to any of its delegated powers. b. See question # 6 in the Legal FAQ c. While Article I consent is not required for the Compact to be joined, it is fair to say that Congress will give implied consent to the Compact when it calls the convention in accordance with the Compact and selects legislative ratification as required by Article V

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and as contemplated in the counterpart congressional resolution. Such implied consent has been held to satisfy Article I Section 10 consent requirements.

5. The states can’t possibly respond in 60 days to a request by Congress to increase the federal debt limit. a. Both the states and Congress will take this requirement seriously and both will plan for the request well in advance. b. To increase its chances for success, Congress will make the request when most of the states are in session c. The states will form committees and devise procedures in advance to deal with such a request from Congress. d. The 60 day period is meant to be the formal period for acceptance or rejection of the requested increase 6. The Compact is way too complicated. a. Actually, the Compact is the easiest version of the Article V initiatives because everything in known in advance about the Article V process, including i. The text of the amendment ii. The designation of the delegates iii. The limitation of the delegates iv. The applying resolution required by Article V v. The rules, date and location of the 24-hour convention vi. The agenda of the convention is limited to an up/down vote on the BBA vii. The Compact includes the pre-ratification of the BBA viii. The 17 safeguards built into the Compact at the request of Eagle Forum b. These details have not yet been developed by the proponents of the COS and BBATF initiatives 7. The Compact is redundant of past Balanced Budget Amendment efforts a. Because the Compact combines the application, a fully drafted amendment, delegate appointment, convention logistics, convention rules, and ratification components of the amendment process into one bill, it achieves six times as many policy goals as simply passing an Article V application and uses less legislative bandwidth than continuing along the path of separately drafting and advancing each such component.

8. The Compact violates the circuit-breaker staging of Article V by combining the application, proposal and ratification of amendments in one enactment. a. The Compact complies with the literal text of Article V by using conditional enactments to ensure that all staging of the Article V process takes place in precisely the order and in precisely the sequence required. b. The Compact complies with the spirit of Article V because the Founders promised that the states would coordinate the amendment process and that it would be relatively easy.

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c. There is no evidence from the founding era that the separate and uncoordinated staging of the Article V process was desired.

9. The Compact indirectly violates Article V by giving Congress a means of proposing amendments by passing a bill with simple majorities instead of first achieving two-thirds of each house of Congress. a. The Compact retains the proposal power in the hands of a convention of states and thus does not enable Congress to simply propose amendments with simple majorities.

10. The Congressional resolution needed to activate the Compact requires presidential signature and he’ll never give it. a. The President has no role in Article V according to the Supreme Court and there is nothing about activating a Compact that implicates the need for President presentment because the resolution activating the Compact does not create federal law in any sense, it merely ushers a previously state-enacted and state-controlled legislative process along.

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