Monday, December 20, 2010

Of Course, Sometimes Congress Deserves It

Dave Weigel reports on continuing efforts by House Republicans to implement their big campaign pledge: they're going to force all bills to cite specific Constitutional authority for whatever it is they're going to do.  Weigel has the key memo.  Best part?  The explanation the leadership provides, in Q&A form:
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. 
In other words..this has no effect, and is just a gimmick designed to please Tea Party types.  

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.  


  1. No positive consequences---unless it provides opportunities for clever and mischievous Democrats to offer amendments to the "Constitutional Authority Statements"!!!

  2. Speaking of silly legislative ideas, how about this "Repeal Amendment"?

    Seems there's a lot of activity duplicating existing power structures. Funny this movement is in the right-wing area that talks so much about the Constitution...and then how much they want to change it.

  3. I am confused. Are there people who that the authority statement had some meaning or significance?

    It always seemed to me to be a blatantly obvious meaningless gesture. Perhaps that is because I am incapable of not thinking like a lawyer.

    Really though, are there people who actually thought this would do something?

  4. I find the conservative movement in the United States simply baffling. I get that the United States is the most conservative industrialized democracy in the world. I just don't get how they continue to exist over time, in the face of their simply stupid bullshit arguments.

  5. I find the liberal (or progressive movement, whatever you call yourselves these days) movement simply baffling as well. Consider that we have government growing exponentially (witness the FCC today and its grasp for influence over the internet) and politicians leading an elite class that revels in its power to tax, spend and regulate without accountability, and Jonathan casually dismisses the push to have our leaders explain how what they are doing abides by the limits our constitution has in place to protect us from political avarice. I understand that the Constitution might be considered a door mat to some, but why fear such a simple request? It's "a stupid idea with no positive consequences"? What are you afraid of?

    The Tea Party is motivated by the impression that our government is out of control and many in our electorate are enabling it. You can disagree with them, and enjoy ridiculing them for all of their concerns. Asking the creators of trillion dollar budgets to explain the constitutional integrity of the schemes they're taxing us to pay for is hardly unreasonable. Certainly even the left would agree that trust in our government is worth improving, no?

  6. Shane,

    I take it you approve of the authority statements. What do you expect them to accomplish? Do you think they will in any way affect what bills Congress passes? What other effects do you expect them to have?

  7. Jim - I would like to think it would affect what bills are passed, but we're dealing with activists who obfuscate for a living so I'll expect that it won't prove as much of a deterrent as I'd like. But maybe it sets a precedent that at the very least gets politicians in DC to assume they're being watched.

    What's important is that in America right now trust in government in at an all time low. The consequence of that is a growing movement of Americans (call them Tea Partiers or whatever you like) who feel their government actually works against their interests and misunderstands the relationship between the citizen and the government. Anything that can begin to address that is an accomplishment well worth the tedium. Many on the left dismiss this growing discontent as a bunch of racists and a marginalized rabble of Ron Paul fans - I disagree. There is a spreading disquiet among the population and while some of that has to do with us abrogating our responsibility as citizens in a republic, much of it has to do with a statist government that has been relentless in coalescing and centralizing power in all spheres of American life. I'm no Alex Jones wack job, but I think the left disrespects this alienation at their own political risk and at the risk of deeper and more profound political turmoil.

    The 111th congress has thoroughly abused it's responsibilities in the goal of foisting Obamacare or other regulatory schemes upon us for our own good. Our congresspeople showing a little humility in performing their temporary role as lawmakers is the least they could do. A symbol that they recognize a constitution that was created to be a constraint on the natural impulse of those in power would be a good start.

    So, whose afraid of that?

  8. Shane,

    Reading your answer, it seems to me that it boiled down to "it has some symbolic value."

    The people who don't think it is a good idea oppose it because we think that symbolic value (which we don't actually have any problem with) is slight. Given the small value we see in it, it does not seem worthwhile adding more of what is essentially red tape to the workings of Congress.

    Let's say you believe in God. What's the harm in thanking him every time you leave the house? What's the harm in saying a little prayer before you start your car? Before you brush your teeth? Before you turn on the television? Before you start a new task? Before you use the computer? Before you use the water fountain? Before you use the toilet? All of these things are gifts from God right? Shouldn't you thank Him? What's the cost?

    Well, I imagine you don't do all of those things because you don't want to clutter up your day like that and you assume the times you do pray to God like before meals and bedtime pretty much cover all that other stuff. The same is true about constitutional authority. Congress swears an oath to uphold the constitution and they do their business aware of their place in the Constitutional order.

    There are lots of things everyone could do whose symbolic meaning no one would object to. In practice we limit the number or symbolic actions we take because too many starts to get in the way of real actions. This looks to many of us more like a stunt than anything that will a real impact, so we question the need to do it. It's not that we object to the basic symbolism but that too many symbols start to look frivolous.


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