- The Washington Times - Tuesday, January 18, 2011

As the House prepares for Wednesday’s vote to repeal the Democrats’ health care law, Republicans say it marks more than a shot at a controversial Obama policy — they argue it is the first step toward making Congress relevant in debates over the Constitution.

Following the House GOP’s new rules, Majority Leader Eric Cantor submitted along with the repeal bill a little-noticed but far-reaching statement of constitutional authority that casts the effort in terms of reclaiming congressional prerogatives and the duty of each branch of government to police itself and “ensure that all their actions are constitutional.”

While occasionally cloaked in legalese and arcane historical debates, their underlying message is this: The Supreme Court is not the only referee on the field when it comes to determining what’s constitutional and what’s not.

“The claim of judicial supremacy has been taken to such a point that it now requires Congress, as well as the executive, to push back and reclaim constitutional authority,” said Matthew Spalding, a Heritage Foundation constitutional scholar whom Republicans consulted. “The deeper significance of the citation requirement is that Congress is stepping up as an institution and saying that it is an independent constitutional actor.”

For much of the last century, schoolchildren have learned that Congress writes the laws, the Supreme Court rules whether they are constitutional, and the president carries them out. But Republicans said that’s a modern, and not entirely correct, division of labor.

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And it’s one reason they wrote their new rule requiring lawmakers to file a statement of constitutional authority along with every bill they sponsor, citing specific constitutional authorities for Congress to take the actions they are proposing.

Mark C. Alexander, a law professor at Seton Hall University, said the back-and-forth is a debate worth having, adding that lawmakers should ponder whether what they are doing is supported by the Constitution. But he said ultimately, Congress will have to defer to the courts’ rulings.

“It’s important to do that, to keep that debate going, but ultimately I think we have to recognize the court makes the decision as to whether something is or is not constitutional,” he said. “If your point is, this is not constitutional, as a member of Congress it’s actually not ultimately your decision. The courts have to decide it. That’s their job.”

The two sides have their dueling authorities.

President Eisenhower summed up the modern constitutional conventional wisdom in a 1954 letter to his older brother Edgar, a lawyer, whom he lectured: “You keep harping on the Constitution; I should like to point out that the meaning of the Constitution is what the Supreme Court says it is.”

House Republicans, though, hearken back to a more original authority, James Madison, who in 1834 wrote that the three branches of government each have a duty to the Constitution and so “it follows that each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.”

In the country’s early days, presidents would regularly veto bills because they thought Congress overstepped its constitutional authority. But in recent times, Eisenhower’s position has dominated — so much so that, in 2002, President George W. Bush signed campaign-finance legislation even as he said “certain provisions present serious constitutional concerns,” including infringement on First Amendment protections.

Still, Mr. Bush said he was content to let the courts sort it out, and so — until now — was Congress.

House Republicans, fueled by tea party sentiment that government has expanded far beyond what the framers of the Constitution intended, hosted a reading of the founding document on the chamber floor their second day in session, and wrote the new rule requiring a constitutional citation of authority.

Their goal, they said, is to push lawmakers to spend more time considering the limits imposed by the document on federal powers.

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