January 5, 2011 9:21AM

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