New GOP Constitution rule: will it work?

A key issue animating Tea Party energy among conservative activists who helped propel Republicans into control of the House on Election Day is that much of the congressional agenda over the last two years is unconstitutional.

Now, the GOP is touting a new rule requiring every bill to cite its specific constitutional authority. If a bill doesn’t cite the Constitution, the House clerk will reject it from being introduced at all, a new memo from Republican leadership explains.

Will this rule change anything? 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.

“It’ll remind us to focus on really an overriding question which is are we passing legislation which is in accordance with the Constitution?” said Rep. Lamar Smith, the Texas Republican who will chair the Judiciary Committee next Congress.

If anyone is serious about the “originalist” view of the Constitution, it is Randy Barnett, a constitutional law professor at Georgetown University and a leading libertarian legal theorist. His book, “Restoring the Lost Constitution,” argues Congress and federal courts should interpret the Constitution according to its “original meaning.”

Barnett called the new GOP rule an “encouraging development” but said a “potential trap door” could hinder its effectiveness in limiting the scope of laws Congress passes.

The Supreme Court, Barnett said, generally offers deference to Congress, striking down laws it passes only when they are well beyond constitutional limits. Meanwhile, Congress relies on judicial precedent to inform its view of what is constitutional. This “double deference” is “a major way the Constitution gets lost,” Barnett said.

Grover Norquist, the president of Americans for Tax Reform, said the rule will be helpful in encouraging discussion in Congress about whether their bills are constitutional.

“It does make people uncomfortable,” Norquist said, meaning that was a good thing. “Every conversation about constitutionality is healthy….there are only good things flowing from that.”

Norquist imagined the rule could make it more difficult for lawmakers, especially Republicans, to offer bills with a dubious basis in the Constitution. “When a conservative has to write a really goofy explanation” of constitutional authority, it will make those bills awkward to defend, he said, “words do matter.”

Barnett, too, offered public debate over constitutionality as probably the best part of the rule from his perspective. One additional idea would be to require debate over whether a bill is constitutional before passage.

Brendan Buck, a spokesman for the GOP transition, allowed that Republicans may require such debate if constitutionality is disputed.

“If the Rules committee finds sufficient (which they will define) uncertainty to whether a bill is in fact constitutional, they could provide an additional period of time for debate solely for the constitutional question,” Buck said.

  • IMcasualcat

    The only problem I have with this argument is that you are relegating the Constitution of the United States to inflexible and absolute.

    Our forefathers intended neither of these conditions as evidenced by its construction. It is, and was intended to be, a living,breathing entity that would serve the people in a society that evolves. That is why there are built in mechanisms for change as our needs,priorities and mores adjust to an environment that is also changing.

    Without the 17th Ammendment,for example, we would not be allowed to vote for Senators as that was given to the state legislature to handle.

    “Before the passage of the Seventeenth Amendment, senators were elected by the individual state legislatures.”

  • votersofny

    What will work is for you bums to stop with the closed door bills. We want to know EVERYTHING that’s going on with congress. You crooks and liars need to start representing. THe majoriyt of the people want to clean house and start fresh.

    We want term limits. That’s the only way to get rid of crooks like Rangel, Frank, Waters, Murtha (hope he’s burning in hell), Kennedy (him too) and so on. Get out you bums.

    • IMcasualcat

      You forgot to mention that paragon of equal rights … Strom Thurmond.

      Though I do have to give you props … most of the longest serving senators seem to have been Democrats … I wonder why that is?

  • independentvoter

    IT WILL WORK.. lets look at things in our own lives when we start out on our own we buy what we NEED.. then you add to what you NEED with what you WANT than you add every time someone comes out with a product and sells it to you as something you want till you have NO ROOM and LESS money.. than you meet someone and get married and they bring all their STUFF into your space..You don’t need DOUBLE stuff and have no room for it but find yourself keeping it in boxes cause you have to buy a house cause your family of 2 is expanding and you need more room for all the STUFF the new person will need.. Kind of like our laws.. our laws have laws that ALL mean basically the same but to look busy they rewrite them adding a little bit more each time..till we have BOXES of laws that have been rewritten but NEVER used (enforced).. Our Constitution is how many pages and our bills passed by the senate with all the loop holes are how many?? And GROWING every time one is written.. The only way to clean up the STUFF is to have a garage sale.. One nice amendment to the Constitutional would be that ALL Presidential orders expire when that president leaves office..Another would be that all bills forward would be STAND ALONE BILLS and less than 250 pages.. there are so many ways to make this government smaller and more efficent it’s SIMPLE.. but than we have had up till now a bunch of LAWYERS more worried about loop holes than making things SIMPLE..

    • IMcasualcat

      What you did was layout one of the fundamental priciples of Sociology.
      That being that “EVERY individual will expand to fill his/her/its environment.”
      A fundamental flaw in human nature …. curious how you would change human nature?

  • sunnyr

    We have to get back to the Constitution and give STATES back their rights that were stolen from them and sold to Big Government in Washington DC. The Department of Education was made “federal” by the nitwit Jimmy Carter and expanded under the nitwit George Bush. Education needs to go back to the STATES! We have to kick the UNIONS OUT OF GOVERNMENT! They were given free rein by JFK and now they are running amok all over the damn place, destroying our economy and bankrupting STATES with exhorbitant retirement plans that are paid for by TAXPAYERS! WE THE PEOPLE have had quite enough of this B***S***!
    It’s time to take our country back and make it prosperous again. Bub-bye Barry!

    • IMcasualcat

      If the states rights were sold to anyone they were sold to Corporations that are now allowed to buy elections.

  • Pingback: Tweets that mention New GOP Constitution rule: will it work? | The Daily Caller - Breaking News, Opinion, Research, and Entertainment -- Topsy.com

  • derkrieger

    “Will this rule change anything? 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.”

    The courts have been wrong. And anyone familiar with what happened during the FDR administration knows how and why he managed to subvert the Constitution to pass his big government agenda.

    The Commerce Clause and the Necessary and Proper Clause are only supposed to be applied to the 17 enumerated powers, not to anything Congress wants to regulate. If the clauses aren’t restricted to the enumerated powers then why have enumerated powers in the first place?

    It is way past time to put the federal genie back in its bottle before we’re all serfs and wards of the state. The Founders would have NEVER supported the socialist policies of the Democrat party. Never.

    • Rational_Texan

      Agreed. Nor would they have supported the socialist policies of the Republican party (doubling the size of the department of education, Medicare plan D, TARP, etc.)

      • derkrieger

        Correct. The Democrats believe in BIG government while most Republicans only believe in big government.

        • ohiodmo

          LOL, Derk… Absolutely true. You made my evening!

        • IMcasualcat

          Always nice when somebody actually sees the big picture …..