In other words..this has no effect, and is just a gimmick designed to please Tea Party types.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.
What I do wonder is whether they're going to get themselves in a bit of trouble with this. I mean -- basically, this is just silly nonsense; of course they think the things they're doing are Constitutional, or else they wouldn't do them. It's just like saying the Pledge of Allegiance at the beginning of the Congressional session; it's perhaps a good attack line to note that they don't do it, but once they do...then you're stuck wasting time with it forever.
However, it is also the case that quite a few Tea Partiers and other conservatives believe, or at least say they believe, that the general arrangement allowing the New Deal to happen isn't really Constitutional. Normally, that isn't a problem. But we know that, whatever they might want, the House isn't going to be able to shut down half the federal government next year. That means they're going to have to fund all those unconstitutional departments and agencies. And, thanks to this foolish pledge, they're going to have to certify that what they're doing is Constitutional. I mean, it's already difficult to get conservatives to vote affirmatively for some of this stuff (and they'll presumably need GOP votes for most of everything) -- now GOP Members are going to have to say that what HHS, Education, and the rest of it are doing is specifically authorized by the Constitution?
I don't know that it will really cost any votes (and I agree that the courts are unlikely to use an "even the House GOP says..." approach, although it'll be cute if they do!). Still, it sure seems like a stupid idea with no positive consequences.