Liberals were partly right when they criticized House Republicans, saying the new requirement for a constitutional justification for each new piece of legislation was mere posturing. The sniping, however, came from the wrong angle. The problem isn't with the requirement, but with its loopholes and lack of enforcement teeth.
As originally proposed by Rep. Scott Garrett, New Jersey Republican, the rule would have caused real obeisance to constitutional limits by mandating that every bill contain a "statement appropriately citing the specific powers granted to Congress in the Constitution as a basis for enacting the law." The General Welfare and Necessary and Proper clauses of the Constitution - both of which have been greatly abused - wouldn't count because they aren't intended to grant Congress specific authority but instead allow it to carry out powers explicitly enumerated elsewhere. Mr. Garrett's proposal therefore would focus on the enumerated power itself, not these vague implementation clauses.
The original proposed reform would make claims of constitutional authority subject to a point of order on the House floor. If a member challenged a citation, a bill's supporters would be forced to defend it in open, time-limited debate. As adopted, the House rule contains neither of these key provisions. It allows the use of the two vague implementation clauses and it doesn't allow a bill to be blocked by a point of order if the constitutional citation fails to pass muster. In other words, it's window dressing.
As The Washington Times reported last week, Democrats exploit the implementation clauses with particular abandon. Of the first 272 bills introduced in the House this year, 89 cite only the General Welfare clause and 47 claim power merely because the bill purports to be "necessary and proper." Another 63 bills cite the similarly abused Interstate Commerce clause, which at least is a specific power even if Congress misuses it to regulate activity that's not obviously economic and that doesn't necessarily cross state lines.
Congress doesn't need procedural reforms that don't bring substantive change. "I fear it will recede into the gloomy depths of congressional process," warns Rutgers University professor Ross K. Baker. But all is not lost. House leaders can fix the weaknesses of this well-intentioned rule by restoring some of Mr. Garrett's original language. Without more oomph, a rule requiring constitutional justification is meaningless.
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