An early push by New Jersey Republican Rep. Scott Garrett to add some “teeth” to the GOP’s new Constitution rule requiring every bill cite its specific constitutional authority failed in a Republican conference meeting Tuesday.
Garrett offered an amendment that would have restricted lawmakers from citing the “general welfare” or “necessary and proper” clause as a bill’s constitutional authority.
If bills cited those clauses of the Constitution, they would be subject to additional debate on the House floor regarding whether the legislation is constitutional.
The amendment was intended to keep members of Congress from adding overly broad, “boilerplate” language that could cover practically any type of legislation.
But it attracted some guffaws from Democrats who privately mocked the amendment.
“Why would one part of the Constitution not be acceptable?” said a Democratic House aide, “If the Republicans disagree with a part of the Constitution, they should change it. Maybe Rep. Garrett should channel his inner Scalia.”
The reasoning behind the proposed rule is that the Founding Fathers intended these broad clauses of the Constitution to be qualified by the specific enumerated powers of Congress.
A dear colleague letter from Garrett urging support of the amendment cites a quote from James Madison in an 1831 letter.
“With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators,” Madison wrote.
Regarding the “necessary and proper” clause, Garrett’s letter cites James Wilson, the Founding Father who proposed the language, saying the words “necessary and proper” are “for carrying into execution the foregoing powers.”
Though Garrett’s push failed, it’s not the end of the battle for him. He’s founder and chair of the Congressional Constitution Caucus and plans to watch closely which specific authorities are cited by lawmakers going forward.
Full text of the letter:
Restore the Preeminence of the Constitution in Lawmaking
Co-sponsor Three Garrett Amendments to H.Res. 5
Current Cosponsors: Roscoe Bartlett, Trent Franks, Randy Neugebauer
DEADLINE: 2:30 TODAY
Dear Colleague:
Article VI, Section 3 of the U.S. Constitution states: “The Senators and Representatives before mentioned…shall be bound by Oath or Affirmation, to support this Constitution.” Sadly, the House frequently passes legislation without first considering the very document that grants us legislative authority. To encourage a return to a more constitutional framework, I am introducing these three amendments:
Garrett Amendment #1
This amendment would require the text of all bills and amendments to contain a statement appropriately citing a specific power granted to Congress in the Constitution. The “common defense,” “general welfare,” and “necessary and proper” clauses of Section 8, Article I of the Constitution would not be considered appropriate Constitutional citations. If a bill or amendment failed to comply, it would be subject to a point of order that could not be waived by the Rules Committee. As a result, each side would have 10 minutes of debate followed by a vote on whether or not to table the point of order and move to consideration of the bill or amendment.
Garrett Amendment #2
This amendment states that the “common defense,” “general welfare,” and “necessary and proper” clauses of Section 8, Article I of the Constitution would be insufficient to meet the newly-required constitutional statement citation mandated by H.Res. 5.
Garrett Amendment #3
This amendment would require staffers to complete yearly training on the U.S. Constitution, similar to the annual ethics training staffers are required to take currently. The Subcommittee on the Constitution, Civil Rights, and Civil Liberties would be tasked with developing and managing the constitutional training.
If you have questions or would like to become a cosponsor of any of these amendments, please send an email to [redacted] or call [redacted].
Sincerely,
Scott Garrett
Member of Congress
Q & A
Question #1: Why are neither the “general welfare,” nor the “necessary and proper” clauses sufficient Constitutional citations?
Answer #1: The Founding Fathers made it clear that each of these clauses was connected to the powers defined in Article I. Sec. 8, Paragraphs 2-18:
1. General Welfare Clause
· “With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” –James Madison, in a letter from 1831
· “It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated.” — Alexander Hamilton in The Federalist No. 33
2. Necessary and Proper Clause
· The words “necessary and proper” [are] “for carrying into execution the foregoing powers.” –James Wilson, the Pennsylvanian who proposed this clause at the Constitutional Convention
Question #2: What if a Member wanted to introduce legislation that would cut federal spending for an unconstitutional government program?
Answer #2: If a Member wishes to introduce a bill that limits federal power, he or she could cite either the 9th or 10th Amendment.
1. The 9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
2. The 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”