"Is there a big crisis coming regarding the budget? Very
knowledgeable friends of mine from the beltway tell me that the
crisis in some ways is more serious than the press lets on." So
said Sherman H. Skolnick in a phone conversation on December
From my perspective, there is indeed a clash shaping up between
the executive and legislative branches of our government. A
foreboding was seen in King Klinton's leonine and imperial
grabbing of executive power when he ordered troops to Bosnia
recently without first seeking congressional approval. As pointed
out by Rep. Dornan, just imagine if Ronald Reagan had done this
during the 1980s: ordered 20,000 troops to Nicaragua and then, as
an afterthought, mentioned that it would be nice if Congress went
along with it. Just imagine if Reagan had done that and then
responded to critics by saying that "It's O.K. These troops are
'peacekeepers.' It's not 'war', it's 'peace.'"
Skolnick takes these worries even further. In our conversation
from last week he reached back to the times of the Stuarts in
17th century England. At that time there was a clash between the
king and the parliament which ultimately led to the beheading of
Charles I. Charles used what was called the "prorogue" power to
suspend the english legislative body. Civil war eventually
ensued. Skolnick raised deep questions of Constitutional law,
relevant to our current clash between branches of government,
that have no easy answers.
Skolnick wonders, "Does Clinton have the power to prorogue
Congress? That is, to shut them down and not... that they can't
go back into session without his permission? Some experts on the
Constitution in the U.S., some say I'm wrong. Some say I'm right.
But I believe that there is a prorogue power."
Yet Skolnick is not absolutely certain. "I'm raising these
questions," he emphasizes.
"I think the opening and closing of Congress is such a formality
that some people have forgotten what the power is to do it. And I
think the power is the same as in the parliamentary system."
"The Supreme Court and others have long since held that on the
question of who sits in Congress, who doesn't sit in Congress,
what goes on between the President and Congress, the House and
the Senate, the Vice President sitting as the President of the
U.S. Senate -- all those things are not subject to being
challenged in a lawsuit in the courts."
"So if in fact there is the prorogue power, the weird thing is
that you won't be able to petition any court to interfere."
BUT -- "There is a thing in parliamentary law: When a
legislature, and presumably a Congress, when they go into session
without the authority of [the chief executive], there's a name
for that: it's called a Rump Parliament -- which means they have
questionable validity. One historical example was in 1946, at the
close of [World War II], in Italy. They were called a 'Rump
Parliament.' The King (I think King Emmanuel) had fled. In other
words, a number of the House of Savoy had fled the country. So
there wasn't a king to put them into session. So they called that
the 'Rump Parliament.' And I believe the same principle of
parliamentary law would apply to our Congress. I know it applies
to [Chicago's] City Council. I believe they had a situation
several years ago where they had a rump session."
"Can this Congress defy Clinton's perceived prorogue powers, go
into session, defy him, and then later, their validity be
questioned? (But I don't know that that validity can be
questioned in court, as I said.)"
"*But*, at that point, from a Constitutional standpoint, the
Executive has the power to arrest them -- the word 'rump'
presumes that it's illegal."
According to Mr. Skolnick, a veteran of decades of court battles,
"All these parliaments go under Roberts Rules of Order. So they
have certain powers that are not otherwise spelled out in
statutes and constitution -- regarding rump, regarding prorogue,
regarding these little-known issues that are raised here."
Skolnick underlined that there is a divided opinion amongst
experts he has talked to. "That's the reaction I get," he told me.
I asked Mr. Skolnick what would happen if Clinton were to call
out the military and order Congress to be arrested.
"I think the military would arrest *him*," was his reply.
"Under the Military Code of Justice, the military officers have
more power than the average citizen. They can't arrest Clinton
when he has his President's hat on. But if generals and other
lesser officers truly believe that their commander-in-chief has
committed treason, under such high crimes they can arrest him.
But not as President! They can arrest him as a commander-in-
chief, under the military code."
"I'm saying that we're facing possible sinister consequences."