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Constitutionality Is in the Eye of the Beholder

• January 04, 2011 • 4:29 PM

Republican attempts to ensure legislation conforms to the Constitution won’t end the ongoing debate over what the document means.

When the 112th Congress convenes this week, Republican leadership in the U.S. House of Representatives plans to roll out a new rule: Every piece of legislation considered this session — no matter how mundane — must be submitted alongside a statement citing the specific authority in the Constitution that gives Congress power to enact the law.

The idea, championed by the Tea Party and central to the GOP’s “Pledge to America,” is a not-so-subtle reference to last year’s health care bill. The 111th Congress, critics complained, regularly exceeded its constitutional authority. And perhaps an exercise as simple as this one could bring Congress back in line with its true job description.

The rule, however, flows from a pair of premises constitutional law scholars and Capitol Hill watchers might fiercely debate. It implies, for starters, that legislators have not until now been thinking much about the Constitution, and that if they simply would look at it, they’d find easy answers.

“It can’t hurt,” University of North Carolina law professor Michael Gerhardt said of the GOP plan. But he adds that the rule would be redundant — a fact the new House leadership has not mentioned. Legislators routinely draft bills to include a jurisdictional statement that spells out the basis for the law and why Congress has the power to enact it. Existing House rules also require legislators to put into their committee reports the constitutional source of any legislation committees consider.

Also, anyone who followed the yearlong health care debate heard plenty of heated arguments in Congress about the law’s constitutionality — even without an explicit House rule. (The final health care bill, for example, cites authority from the commerce clause to justify the individual insurance mandate that is now at the heart of court challenges).

“I think this is a bit misleading in the sense that it’s based on a false premise,” Gerhardt said. “The false premise is that people in Congress are not doing this. People in congress are doing this, and have been doing this. Thus to suggest at the outset that somehow people in Congress have been failing to do this, have not been thinking about this, is itself wrong.”

If the new rule has a benefit, Gerhardt suggests, it may lie in making the public aware of that.

“It’s important for people to understand that Congress is already doing it,” he said. “I know members of the Tea Party, or the people that style themselves that way, want to believe people aren’t doing it their way, but that doesn’t mean they’re not doing it.”

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[/class] As Gerhardt suggests, the real differences lie in interpretation, not in whether some legislators are actually reading the Constitution, while others are not.

“That’s what really scares me about a proposal like this,” said Steven Schwinn, an associate law professor at the John Marshall Law School and an editor of the Constitutional Law Prof Blog. “I think what they’re trying to do is suggest that they have some kind of corner on the Constitution, they have some sort of monopoly on constitutional interpretation. That’s just not so.”

When legislators craft these constitutional authority statements — House leadership suggests the citations should look like this — they will primarily be drawing from two passages: the commerce clause, which grants Congress the power to regulate commerce with foreign countries, among the states, and with Indian tribes, and the “necessary and proper” clause, which is not terribly specific about exactly what types of laws are “necessary and proper.”

Democrats and Republicans alike will have little difficulty citing these passages, both from Article I of the Constitution, to comply with the new House rule. But that doesn’t mean they’ll be any closer to agreeing on what’s constitutional.

“You’re just kind of back to where we began, and that is a debate over what the commerce clause and the ‘necessary and proper’ clause mean,” Schwinn said. “That’s a debate as old as the republic.”

Randy Barnett, a Georgetown law professor and author of Restoring the Lost Constitution: The Presumption of Liberty, believes the new rule may in fact help clarify that debate. When legislators consider constitutionality today, he says, they deploy a “secret trick” — they consider not necessarily what they believe the Constitution says, but whether they think the courts will uphold legislation. And the courts frequently defer to Congress.

“Each branch is deferring to the other branch, and therefore, what is actually within Congress’s power never gets decided by either branch,” Barnett said. “I know this sounds like it must not be true, but it’s true, I swear. It’s what judicial opinions say.”

The new rule, he believes, may finally encourage legislators to interpret the Constitution for themselves and not through the lens of the Supreme Court (with which Barnett has largely disagreed over the past 70 years).

“[Congressmen] take an independent oath to uphold the Constitution, and that means they have to decide what it means, they have to have their own independent opinion about it,” Barnett said. “They don’t take an oath to uphold Supreme Court decisions.”

Schwinn and Gerhardt, though, dispute Barnett’s view of what Congress and the courts have been up to all these years, which brings us again to Schwinn’s assessment: We’re back to where we began, new House rule or no new House rule.

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Emily Badger
Emily Badger is a freelance writer living in the Washington, D.C. area who has contributed to The New York Times, International Herald Tribune and The Christian Science Monitor. She previously covered college sports for the Orlando Sentinel and lived and reported in France.

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