New GOP Constitution rule irks House Democrats

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Jonathan Strong
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      Jonathan Strong

      Jonathan Strong, 27, is a reporter for the Daily Caller covering Congress. Previously, he was a reporter for Inside EPA where he wrote about environmental regulation in great detail, and before that a staffer for Rep. Dan Lungren (R-CA). Strong graduated from Wheaton College (IL) with a degree in political science in 2006. He is a huge fan of and season ticket holder to the Washington Capitals hockey team. Strong and his wife reside in Arlington.

In the next Congress, Republicans will require every bill to cite its specific constitutional authority, a reminder to color inside the lines drawn long ago by the Founding Fathers.

The rule is a mostly symbolic overture to the Tea Party, for which an animating cause was that much of the congressional agenda over the last two years, including the president’s health care law and the bailouts for Wall Street, has been unconstitutional.

But some House Democrats are steamed at the charge their agenda has gone beyond Congress’s constitutional authorities.

“It’s an air kiss they’re blowing to the Tea Party,” said Massachusetts Democrat Rep. Barney Frank about the rule. “Anything we’re doing that’s unconstitutional will be thrown out in court. Some of them interpret the constitution very differently, but no, that will not be a problem.”

One Democratic House aide went further, accusing the GOP of using the Constitution as a partisan weapon.

“Both parties are operating under the same set of rules. When Republicans lose, though, they call Democrats unpatriotic and unconstitutional. It’s like the Republicans think that the Constitution will somehow save them from gay people, the poor, minorities and everything else that makes them uncomfortable,” the aide said.

At issue is the core question of what authority the Constitution grants Congress. The Constitution lists 17 enumerated powers for Congress, but two of those, the Commerce Clause and the Necessary and Proper Clause, have been construed quite broadly by the Supreme Court.

Top Democrats cite federal courts as the ultimate backstop of whether the laws they pass are constitutional, but say they have a responsibility to weigh that question when voting as well.

“When I went to law school they said the law’s what a judge says it is. Whether it is constitutional or not is going to be whether the Supreme Court says it is. And it could be a 5-4 decision, which means not everyone is in agreement,” said Rep. Henry Waxman, current chairman of the Energy and Commerce Committee and one of the most powerful liberals in the Democratic caucus.

“Oftentimes it’s unclear. For example, this year we passed a law to make it a crime to broadcast videos of animals being tortured. I could imagine a court throwing that law out as unconstitutional, but I certainly supported because I think it’s horrible,” Waxman said. “If Members of Congress know a law is unconstitutional, they may refrain from passing such a law.”

“The courts determine what’s constitutional ultimately. We are not supposed to pass anything unconstitutional. If I think something is unconstitutional, it’s my duty to vote against it. But if you think it’s constitutional and a good idea then you can vote for it,” said Rep. Jerrold Nadler, New York Democrat and current chairman of the Judiciary Committee’s constitutional subcommittee.

Many bills cite specific clauses in the Constitution as their authority, and committee reports offer a more detailed justification, Democrats note.

“It’s already in there, it’s another check off the box,” said Waxman.

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  • Kurtis D. Davis

    Much insight can be gained by realizing the Supreme Court is not sworn to uphold the Constitution, whereas every elected member is. All you need do is read the oaths, and compare them.

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  • Tess_Comments

    It is time for the Democrats to take responsibility for their actions.

    Everything is NOT Bush’s fault or the Republicans fault.

    How many things did Obama do that he campaigned against? How many of Bush’s policies that Obama condemned has he reinstated?

    The Republicnas only have a majority in the House. They do NOT have a Majority in the Senate and we have a Democratic President. Even when the Democrats had a Majority in Congress and a Democratic President they BLAMED the Republicans. WAKE UP and Watch do not just listen.