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House Republicans Set Rule to Mandate Constitutionality Clause Into All Legislation

Last year, Michele Bachmann repeatedly asked Tim Geithner and Ben Bernanke in a Congressional hearing whether TARP, and the emergency lending actions of the Federal Reserve, were Constitutional. This somewhat silly line of questioning has now, a year later, spawned a new House rule.

I’ve received the memo to Congressional staff spelling out the new rule, which mandates that all legislation must include a clause attesting to the Constitutionality of the measure. Here is the rule change:

“(c) A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution. The statement shall appear in a portion of the Record designated for that purpose and be made publicly available in electronic form by the Clerk.”

This is fairly anodyne stuff, and if it’s the worst by-product of the Tea Party’s newfound prominence in national politics, we’ll have all dodged a very large bullet. But this just seems needlessly silly to me. If legislation is unconstitutional that will come out somewhere down the line. Entire court cases are devoted to this question, I’m told. And a line inside the legislation, which “proves” the Constitutionality, just isn’t going to be good enough for the judicial branch, I can safely assume.

There’s an Office of Legislative Counsel which already provides advice on Constitutional matters to lawmakers. So this mechanism already exists. Spelling it out in the legislation may make a few tea party activists happy (although I doubt it), but it does nothing to actually address matters of constitutionality.

My favorite part of the memo, which Dave Weigel already reproduced at his site so I don’t have to, is when it instructs members to ask the Cato Institute or the Federalist Society (and, to be fair, the Brookings Institution and the American Constitution Society) to find out if legislation is unconstitutional. There’s also an amusing FAQ, which includes this:

Q. What impact will the Constitutional Authority Statement have on litigation regarding the constitutionality of Acts of Congress?

A. To the extent that a court looks at the legislative history of an Act, the Constitutional Authority Statement would be part of that history. However, the courts have made clear that they will not uphold an unconstitutional law simply on the basis that Congress thinks that the law is constitutional.

Q. What if the citation of constitutional authority is inadequate or wrong?

A. As stated earlier, the adequacy and accuracy of the citation of constitutional authority is a matter for debate in the committees and in the House. Ultimately, the House will express its opinion on a proposed bill, including its constitutionality, by either approving or disapproving the bill.

Q. So why have this 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.

The best part of that is that the Republicans have spent the past two years mocking Congressional Budget Office scores as unrealistic, and even threatened to fire the current chief of the CBO, Doug Elmendorf. So I’m sure this new constitutionality clause will “inform the debate” just as well.

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David Dayen

David Dayen