- 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.

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.

New rules

It’s too early to draw many conclusions about Republicans’ experiment with constitutional authority statements, though the early data suggest mixed results.

The most popular authority members cited — on nearly a third of all bills submitted so far — is Article I, Section 8, Clause 1, which gives Congress general legislative powers and charges it with providing for the “general welfare.” The second most commonly cited authority is the so-called “interstate commerce” clause in Article I, Section 8, Clause 3, which was cited on nearly a quarter of all bills.

The most prolific lawmaker so far, Rep. Sheila Jackson Lee, Texas Democrat, has introduced 27 bills, citing Clause 1 powers 11 times, Clause 3 powers seven times, and Article I, Section 8, Clause 18 powers — the “necessary and proper” clause — five times.

Four lawmakers have proposed repealing laws, saying they are unconstitutional because they infringe on the 10th Amendment’s reservation of most powers to the states.

The rules require lawmakers to identify “as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution,” and some are taking that more seriously than others.

Rep. Mike Rogers, Michigan Republican, filed a two-paragraph explanation justifying Congress’ authority to extend the post-9/11 Patriot Act, including the power to “provide for the common defense” found in Article I, Section 8, Clause 1, and the necessary and proper clause. And Rep. Todd Akin, Missouri Republican, cited specific Supreme Court case law that has interpreted Congress’ rights to act on setting federal courts’ jurisdiction.

But other lawmakers aren’t putting in the same kind of effort.

Two Democrats, Rep. Rush D. Holt of New Jersey and Rep. Lynn Woolsey of California, submitted a total of eight bills pointing only to Article I of the Constitution in general, which includes all the sections on the makeup and powers of the legislative branch.

Mrs. Woolsey’s bills include measures to increase workplace safety and whistleblower protections and to establish a “public option” government-run health care plan. Mr. Holt’s bills, meanwhile, deal with the tax code, including income taxes, where Congress’ authority stems from the 16th Amendment — though Mr. Holt only cited Article I authority.

Their offices didn’t respond to several messages left seeking comment on their abbreviated statements.

Still to be seen is how the statements will affect the actual debate over bills in committees and on the House floor.

Test case

Mr. Spalding, who is director of the Heritage Foundation’s Center for American Studies, said one test for the new House GOP majority will come when they try to make incremental changes in areas where many of them think the federal government has overstepped its role — such as education. In those cases, the GOP is more likely to try to reform, rather than replace existing policy, which will force them to have to justify the government’s role in the first place.

“The real challenge will come with good reforms, which significantly move in the direction of more constitutional responsibility, yet still remain constitutionally dubious — how are they going to write the citation for that?” he said.

Ross K. Baker, a constitutional expert at Rutgers University, said any discussion is a good step, both for members of Congress and for the country more broadly.

“I think Americans in general are not really well-aware, and one of the things we owe to the tea party is bringing this question of just what the authority of Congress is to the public attention,” he said.

Still, he said there’s a real danger that the authority statements will become just another box lawmakers check off as they introduce bills.

“This has been a great, brief era of constitutional awareness. I think it’s a terrific thing, and I applaud it, but I fear it will recede into the gloomy depths of congressional process and simply be another element of the procedure.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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