Would Proposed Law Suspending Payment of Congressmen’s Salary Until They Produce a Budget Violate the 27th Amendment?

Roll Call reports:

The House GOP bill made public just as Obama’s second inauguration ceremony was getting under way would suspend the salaries of members of the House or the Senate if either chamber does not adopt a budget resolution by the April 15 deadline set by the 1974 budget process law (PL 93-344).

But the Twenty-Seventh Amendment provides,

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Though the impetus for the proposed amendment (which took 200 years to ratify) was apparently a worry that members of Congress would raise their own salaries, the text bars any varying of the salaries, and not just raises. My inclination is to say that this would cover suspension of members’ salaries, even if the salaries would in theory be payable later, since that too would be “varying the compensation for … services” (given both the general time value of money, and the reality that getting one’s salary today as opposed to a month from now makes a good deal of difference to many people); the proposal would thus be unconstitutional. But this is just my tentative view at this point, and I’d love to hear what our readers have to say about this.

UPDATE: Michael Froomkin (Discourse.Net) has more on this, with an extra twist related to severability (i.e., whether, if the pay suspension is struck down, the rest of the bill would have to go with it). I’m inclined to say that a court would and should find the pay suspension severable, so that the rest of the law would remain in effect even if the pay suspension were struck down; but if you’re interested in this, read Michael’s much more detailed analysis.

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