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.
Additionally, Democrats insist the major new laws they passed over the last two years are constitutional.
“Financial reform? What could have been remotely debatable?” said Frank. On the individual mandate, “I don’t understand how that’s unconstitutional unless Medicare is unconstitutional.”
Nadler said, about the health care law, “There’s one provision in the health care law that, going by the court decisions over the last 60 years, is fine. If the courts want to overturn what they’ve said for the last 60 years, then they can do that.”
“The only thing that’s being challenged is the question of the mandate. And the argument that that is constitutional is dependent on the taxing power and the Commerce Clause,” said Waxman.