In an attempt to breathe more life into a false claim that the Affordable Care Act gives special privileges to members of Congress — in reality, Obamacare requires lawmakers to purchase health insurance on an exchange but allows them to keep the same employer contribution to these costs that every other federal employee enjoys — Sen. Rand Paul (R-KY) introduced a constitutional amendment that would supposedly “hold government officials to the same standard as the American people.” Yet his amendment is so poorly drafted that it would likely have the exact opposite effect of what he claims. Should Paul’s amendment be ratified, it could convert members of Congress into a superprivileged class entitled to collect every welfare benefit offered by the federal government, regardless of their age, health or income.
Paul’s amendment provides that “Congress shall make no law applicable to a citizen of the United States that is not equally applicable to Congress,” and then includes similar provisions applying to executive branch officials and federal judges. The problem with this language, however, is that it makes no distinction between laws that give special privileges to members of Congress and laws that exclude them from federal benefits for entirely legitimate reasons.
To give an absurd — but entirely plausible example, given the breadth of the Paul amendment’s language — Congress recently enacted a bill that includes a one-time payment for the widow of the late Sen. Frank R. Lautenberg (D-NJ), which is a typical practice when a member of Congress dies in office. Under Paul’s very broad constitutional language, however, a law that is applicable to just one citizen — in this case, Bonnie Englebardt Lautenberg — must also be “equally applicable” to members of Congress. Thus, every member of Congress could sue to demand that they also receive a payment equal to the death benefit paid to Lautenberg’s widow. Under Paul’s broad language, such a lawsuit could very well succeed.
Nor is this problem unique to one-off laws providing benefits to individual citizens. Federal Medicare law excludes most Americans under the age of 65 from receiving benefits. But if the Constitution explicitly prohibits laws that are “applicable to a citizen of the United States” but “not equally applicable to Congress,” then it is not at all clear that federal law can deny Medicare benefits to any member of Congress so long as those benefits are enjoyed by any U.S. citizen. Medicare benefits are “applicable” to Americans over 65, so they must also be “applicable” to members of Congress. The same could be true about Social Security benefits. And food stamps. And veterans benefits. And federal employee retirement benefits.
Indeed, Paul’s amendment is so broadly drafted that it could immediately grant to every member of Congress every single benefit offered to anyone at all under federal law. Because Medal of Honor recipients currently receive a monthly pension of $1,259 as a reward for their service, members of Congress could potentially also have to receive this pension, despite having done nothing to earn it.
Admittedly, the intent of Paul’s amendment is to limit the privileges afforded to members of Congress, not to transform them into recipients of the most generous and unnecessary welfare program in American history. So it is possible that the courts would ignore the literal meaning of the amendment and interpret it narrowly to merely forbid laws that give special privileges to lawmakers. Even this interpretation is problematic, however.
To give just one example, Senate Rule XXIII prohibits all but a short list of mostly high-ranking government officials from being present on the Senate floor while the body is in session. Under Paul’s amendment, however, if just one citizen is barred from setting foot on the Senate floor, then this bar must also be “equally applicable” to the senators themselves. Conceivably, Congress could rectify this situation by opening the Senate floor up to everyone, but it would be virtually impossible to conduct legislative business if literally any U.S. citizen — or, perhaps, thousands of them at a time — could rush the Senate floor.
Paul is well-known for his idiosyncratic understanding of the Constitution. He once praised a widely reviled Supreme Court decision that would protect employers seeking to exploit their workers, and he labeled whites-only lunch counters the “hard part about believing in freedom.” Given his tendency to read our founding document and see things there that few other people see, it’s probably a bad idea for him to draft new amendments to add onto that document — even if those amendments actually do what he says they will do.