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.
More likely, though, the question will be answered with votes. “At the end of the day, though, a member must decide with their vote whether its constitutional. Our goal is refocus members of Congress on its constraints and ensure no member introduces a bill without considering the document,” Buck said.
Even Smith, who takes his constitutionalism quite seriously (“I have an autograph of James Madison…the father of the Constitution on my wall that I look at a hundred times a day,” he said) let out a soft laugh when asked about the rule. “It’s a reminder,” he said, adding that another GOP rule to require legislation to be posted publicly for three days before passage is another “major increase in transparency.”
A memo sent to House Republicans about the new rule offers some hope for conservatives like Barnett that the GOP is serious about taking an independent view of Congress’s authority under the Constitution separate from the Supreme Court’s jurisprudence.
The memo offers the Federalist Papers, written by Madison, Alexander Hamilton and John Jay under the pseudonym “PUBLIUS,” to defend the Constitution as it was under consideration as a “resource” for members of Congress to determine if their bills are constitutional.
The Federalist Papers “are considered by many to be the primary source of authority on what the Constitution was understood to mean when it was ratified,” the memo says.
Ed. note: This article has been corrected regarding the state in which Rep. Lamar Smith’s congressional district lies.