Is House Hype Over the Constitution Real?
When Rep. Newt Gingrich (R-Ga.) was sworn in as Speaker of the House in January 1995, he delivered a remarkable acceptance speech, replete with a suggested reading list for his colleagues that included the Constitution and the Federalist Papers. When Rep. John Boehner (R-Ohio) was sworn in as Speaker on Jan. 5, he did Gingrich two better with directives that not only required the reading of the Constitution in the House chamber the following day but also required Members to submit constitutional authority statements with every bill that they introduce.
All this constitutional hype can be directly attributed to the tea party movement's effect on the 2010 elections and makeup of the new Congress. A central theme of the movement has been its call for a return to limited government grounded in the spirit and letter of the Constitution.
These two early bows to the Constitution have already been dismissed by some as symbolic gestures to appease the restive tea partyers who want to see instant results in the new Congress. I am not so cynical, but I do offer a few cautionary flags and caveats about this new constitutionalism.
Forcing Members of Congress to stop and think before they act is always preferable to visceral legislative eruptions. Thinking about how a legislative idea conforms to Congress' constitutional authority is especially advisable before drafting and introducing a bill.
The Republican leadership circulated a five-page memo to Members and staff in mid-December on how to implement the new rule. The memo included a "Constitutional Authority Statement" form, along with examples of how the statements might be worded, e.g., "This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 3 of the United States Constitution." Members are required to sign the statements, which will then appear in the Congressional Record.
The memo indicates that the Office of Legislative Counsel will provide Members with the properly formatted statement forms, but "it is the responsibility of the bill sponsor to determine what authorities they wish to cite and to provide that information to the Legislative Counsel staff." In other words, do your own homework.
To assist with that homework, the memo lists several resources, including the Congressional Research Service's "Annotated Guide to the Constitution." There, some Members (and tea partyers) may be surprised to learn that Congress' power under Article I, Section 8, Clause 1, to tax, spend and "provide for the...general welfare" is "not limited to the direct grants of legislative power found in the Constitution" (U.S. v. Butler, 1936). As the guide notes, Alexander Hamilton ultimately prevailed over James Madison in their disagreement over the clause, and it has long been used to justify such things as "internal improvements" and grants-in-aid to the states.
I am baffled over why Boehner's new rule abolishes the existing requirement, adopted in 1997, that committee reports on bills contain constitutional authority statements. As we all know, bills that emerge from committees sometimes differ radically from the introduced versions — often including entirely new subject matter and governmental authorities. That is where the legislative rubber really meets the constitutional road. Will the real omnibus driver please stand up?
I asked one of this town's pre-eminent constitutional scholars, Louis Fisher, a resident scholar at the Constitution Project, what he thought of the new rule. He expressed skepticism about the value of the authority statements.
"How will the Constitution be safeguarded when lawmakers simply justify a bill by saying it is within the taxing power, the commerce power, the spending power...?" he asked. "Those phrases are far too vague and will mean nothing to constituents."
What concerns Fisher (and me) more is whether Congress' newfound interest in the Constitution will be limited to the legitimacy of legislation or will it extend to rethinking the relationship between the branches. Fisher has long lamented that Congress has ceded too much power to the executive branch over the past several decades on such matters as oversight of agencies and programs, war powers and budgeting.
Getting back to Gingrich's reading list for the 104th Congress, it is ironic that he apparently forgot his own advice about reading the Constitution. In his book, "Lessons Learned the Hard Way," published two years after he became Speaker, Gingrich confessed one of the main lessons that he learned from the problems he encountered was that, "We had not only failed to take into account the ability of the Senate to delay us and obstruct us, but we had much too cavalierly underrated the power of the President." In other words, they blithely ignored half of Article I and all of Article 2.
Similarly, the constitutional lesson that the new Republican majority in the House must relearn is how to govern institutionally, taking into account the legitimate interests, concerns and priorities of the Senate and president while asserting the rights and responsibilities of the House. That is something the tea party movement will also come to appreciate about governing a country.