Tag: Tea Party

Citing the Constitution

A few responses to my mention yesterday of the new House rule requiring each introduced bill to cite a specific constitutional provision for Congress’s authority to pass it asked me to elaborate on what this would mean in practice. Well, this is apparently a new thing so nobody knows exactly, but the Republican leadership has provided a fascinating memo providing guidance to all (not just GOP) lawmakers.

First of all, the Constitution has to be cited “as specifically as practicable.”  For example: ”The constitutional authority on which this bill rests is the power of Congress to make rules for the government and regulation of the land and naval forces, as enumerated in Article I, Section 8, Clause 14 of the United States Constitution.”  That’s pretty good and specific. 

But try this one: ”The Congress enacts this bill pursuant to Clause 1 of Section 8 of Article I of the United States Constitution and Amendment XVI of the United States Constitution.” It looks specific – lots of numbers – but the first clause of Article I, Section 8 is a biggie: ”The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” So let’s say you have a tax bill: do you just cite that?  Well, that shouldn’t be enough because, as we’ve learned with the Obamacare litigation, even if something is a tax – highly questionable in the individual mandate context – it needs to be attached to an enumerated power because the general welfare is not infinitely elastic (instead limiting Congress’s exercise of its enumerated powers to ends that are truly for the national – as opposed to particular, or local – good).

And we haven’t even gotten to the Fourteenth Amendment, about whose meaning several libraries of books, law review articles, and judicial opinions have been written.

Luckily, the memo provides a list of resources members can consult, including the Federalist Papers, the online Founders’ Constitution, and the following list of “think-tanks and associations”: Brookings, Cato, the Federalist Society, and the American Constitution Society (and Heritage is mentioned earlier in the document, particularly its excellent Heritage Guide to the Constitution, which contains entries by several Cato-affiliated folks).

So, yeah, congressional staff, if you have any questions, feel free to drop me a line for the true meaning of the Tonnage Clause (ok, maybe not that one, but I’m pretty good with, for example, the Commerce Clause and Priviliges or Immunities Clause).

Which raises another question, even if the would-be bill sponsor meets the ”specificity” requirement: Who gets to determine whether the cited provision indeed provides the authority claimed?  On what standard?  Well: “The adequacy and accuracy of the citation of constitutional authority is matter for debate in the committee and in the House.”

That sounds great: Congress will actually be debating whether it has the authority to do something!  Kickin’ it 19th-century style! The Congressional Record might now be as interesting reading as the transcripts of Supreme Court arguments, but more so because the debates there will almost certainly be less abstruse and designed to appeal to (and satisfy) constituents.

Finally, the memo has a relatively long FAQ section, including my personal favorite:

Q. Isn’t it the courts’ duty to determine whether a law is constitutional and thus doesn’t this rule infringe on the power of the courts?

A. No. While the courts have the power to overturn an Act of Congress on the basis that it is unconstitutional, Members of Congress have a responsibility, as clearly indicated by the oath of office each Members takes, to adhere to the Constitution.

Yes!  Congressmen and senators (and the president) take an oath to “support and defend the Constitution” so they are derelict in their duty if they don’t consider a proposed bill’s constitutionality – in contradistinction to Nancy Pelosi’s “are you serious?” position and George W. Bush’s “let the Supremes sort it out” view (with respect to the McCain-Feingold campaign finance law, for example).  This may be one of the few things on which I agree with former Delaware senatorial candidate Christine O’Donnell (who now faces allegations of having violated campaign finance rules, but perhaps that’s just, um, a witch-hunt).

As for what role these new constitutional citations will play in any future litigation, well, jurists use legislative history in various ways – some, like Justice Scalia, not at all – and this would become one more piece of evidence elucidating congressional intent or justification (which, as we also know from the Obamacare lawsuits, courts are powerless to look behind to, for example, transform a regulation into a tax).  Ultimately, of course, Congress’s final vote on the proposed bill will incorporate each member’s constitutional judgment.  But courts won’t uphold a law just because Congress thinks it’s kosher.

So why have the rule at all?     

A. Just as a cost estimate from the Congressional Budget Office informs the debate on a proposed bill, a statement outlining the power under the Constitution that Congress has to enact a proposed bill will inform and provide the basis for debate. It also demonstrates to the American people that we in Congress understand that we have an obligation under our founding document to stay within the role established therein for the legislative branch.

Sounds good – great, actually – to me.  But the proof will be in the pudding of how and what the 112th Congress legislates.

H/T: Josh Blackman

Congress Rediscovers the Constitution

If the new Congress to be sworn in on Wednesday is the Tea Party’s cardinal achievement so far, its most symbolic achievement will unfold the next day, when the first order of business in the House will be a reading, aloud, of the Constitution – by all accounts, for the first time in the nation’s history. I discuss this issue more fully in this morning’s Wall Street Journal. Let me add simply this:

Symbols are important. When the House votes next week to rescind ObamaCare, as it is expected to do, that vote will be symbolic, because no one expects the Senate to uphold the vote, nor the president, if it did, to do anything but veto it. But the new House, responding to the voters who sent them to Washington, will have thrown down the gauntlet, and the real work will then begin.

Restoring limited constitutional government is a tall order, to be sure, and it cannot happen in a day. But we didn’t get into this mess in a day, either. As we saw a generation ago in Eastern Europe, and are now starting to see in Western Europe, the road out of the ubiquitous state is difficult, with fits and starts along the way. But the alternative is simply unacceptable, because unconstitutional. We’re fortunate that we’re not in as deeply as many others, and fortunate too that we have a Constitution to serve as our touchstone. Wednesday, with the oath “to support and defend the Constitution,” will be a start. Thursday’s reading will dramatically set the stage for the debate that follows. The hard work then begins.

The Constitutional Vision of The New York Times

The editorialists at the The New York Times are out of sorts this morning over a Tea Party backed constitutional amendment that would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved. Despite the backing of incoming House majority leader Eric Cantor and legislative leaders in 12 states, the proposal has little chance of succeeding, the Times avers, “but it helps explain further the anger-fueled, myth-based politics of the populist new right.” Indeed, it expresses “with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad.”

Well? Isn’t that what the election last month was all about? But right there, for the Times, is the problem: “In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty.” With the Tea Party, however, the tables have turned. What most troubles the Times, it seems, are Tea Party signs that say “We Want Less!”

And nowhere is that better captured than when the Times speaks of “the mistaken vision of federalism on which [this amendment] rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.”

If that vision is “mistaken,” so too, apparently, were the Founders, because it was their vision as well. To be sure, the Constitution they crafted held “competing elements, some constraining the national government, others energizing it,” as the Times writes. And true also, the government they shaped was meant “to promote economic development that would lift the fortunes of the American people” – but mainly by securing the framework for liberty, the rule of law, not by pursuing prosperity through government programs. In particular, the Framers believed in personal, not government, responsibility; private, not collective, property; and a free, not a planned, economy. And they left most power with the states, where it would be exercised responsibly, or not – something to keep in mind as we watch our “failed states” asking Washington (read, the other states) to bail them out.

Independent Agencies Test Tea Party Mettle

Is there something special about December? Perhaps it’s the spirit of giving that had the Federal Communications Commission voting yesterday to regulate Internet service. At the beginning of the month—December 1st—the Federal Trade Commission issued a report signaling its willingness to regulate online businesses.

No, it’s not the fact that it’s December. It’s the fact that it’s after November.

November—that’s the month when we had the mid-term election. The FCC and FTC appear to have held off coming out with their regulatory proposals ahead of the elections because the Obama administration couldn’t afford any more evidence that it heavily favors government control of the economy and society.

There was already plenty of evidence out there, of course, but the election is past now, and the administration has taken its lumps. It’s an open question whether there will be a second Obama term, so the heads of the FCC and FTC are swinging into action. They’ll get done what they can now, during the period between elections when the public pays less attention.

And that is a challenge to the Tea Party movement, which would be acting predictably if it lost interest in politics and public policy during the long year or more before the next election cycle gets into full swing. Politicians know—and the heads of independent agencies are no less political than anyone else—that the public loses focus after elections. That’s the time for agencies to quietly move the agenda—during the week before Christmas, for example.

So it’s not the spirit of giving—it’s the spirit of hiding—that has these independent agencies moving forward right now. It’s up to the public, if it cares about liberty and constitutionally limited government, to muster energy and outrage at the latest moves to put the society under the yoke of the ruling class. Both the FCC and the FTC lack the power to do what they want to do, but Congress will only rein them in if Congress senses that these are important issues to their active and aware constituents.

Are Tea Partiers Anti-trade?

Where will the new Tea-Party-backed members of Congress come down on trade issues, such as the newly revised trade agreement with South Korea or the next farm bill?

Those elected to the House are the biggest question marks because very few of them have had to think much about trade, never mind actually cast a vote on it. In an op-ed in the Philadelphia Inquirer this week, I try to discern what direction the new members will take the generally pro-trade Republican Party, and which direction they should take it in light of the movement’s free-market, limited-government principles.

For my full take, see “Are Tea Partiers Anti-trade?”

‘Prince of Pork’ to Chair Appropriations

House Republican leaders went with Rep. Hal Rogers (R-KY) – a.k.a. “The Prince of Pork” – to chair the House Appropriations Committee. As I wrote last week, the prospect of Rogers chairing Appropriations is about as inspiring as re-heated meatloaf when it comes to his potential for pushing serious spending reforms.

Republican leaders in the House chose to ignore the concerns of tea party activists and other proponents of limited government, who were more supportive of Rep. Jack Kingston’s (R-GA) dark-horse push for the chairmanship. Kingston’s plan to “change the culture” on Appropriations offered a lot of positive ideas suggesting that he was more in tune with the voters that gave Republicans the majority.

Politico reported that Kingston received “the cold shoulder” from the House leadership in his bid to chair appropriations. Instead, presumptive Speaker of the House John Boehner supported spending-hawk Jeff Flake’s (R-AZ) bid for a seat on the committee. That’s nice, but Flake himself appears to recognize that his appointment could amount to a token gesture if old bull spenders end up ruling the roost:

“If it’s just putting a few conservatives on the committee, and leaving the current structure pretty much in place, that’s not enough.”

Some congressional Republicans have defended Rogers’ chairmanship, saying that he’ll be fine if he sticks to what he says he’s going to do. A long-time champion of earmarking, Rogers did agree to go along with a ban on the tawdry practice a few weeks ago, which was convenient timing.

Will the leopard change his spots?

The left-wing Think Progress blog recently used a FOIA request to obtain a letter Rogers sent to the Department of Health and Human Services requesting ObamaCare money for a community service center in his district. No earmarks? No problem for Hal Rogers. He can just go the time-honored route of policymakers heckling federal agencies for pork. Earmarks represent just one of many ways that parochial-minded members steer benefits to their districts at the expense of taxpayers and the general public good.

According to Bloomberg, Kentucky’s Lexington Herald-Leader called Rogers “the very model of an old-fashioned pork-barrel politician who builds an empire out of government spending.” Roger’s website contains numerous pictures of him attending local photo-ops for projects he helped fund with federal taxpayers’ money. (I suppose one argument in his favor is that lifting all those ceremonial spades means he’s probably in good shape to handle the rigors of chairmanship.)

The support for Rogers from House Republican leaders is a slap in the face of voters who demanded change in Washington—change from the big-spending ways of both Democrats and Republicans.

Quick Link on the Tea Party and Ag Subsidies

I wrote last week about my concerns regarding the fiscal conservatism of tea party candidates when it comes to farm programs. Edward Lotterman, writing in the (Minnesota) Pioneer Press Online, asks the key question:

If you campaign on a platform of lower taxes, smaller government, no budget deficits and ending government redistribution of income to small interest groups, how on Earth can you vote for continued spending on federal commodity programs?

Read the whole thing here.