House Republicans and the Constitution: Opening the Door to New Battles

Less than a week before taking over control of the House of Representatives, Republican leaders have announced plans to implement a new rule they say will impact debate on every substantive measure generated by lawmakers in that chamber of Congress. Starting this month, the sponsor of each new bill will have to identify, chapter and verse, the constitutional underpinning for the exercise of congressional power contemplated by the proposed measure. In other words, one part of the legislative branch will initially offer its own interpretation of the constitutionality of its pending work before the federal judiciary is called upon to offer its conclusive view of the matter.

The new House rule -- requiring what's been labeled a "Constitutional Authority Statement" -- is said to be a nod to the waxing influence of tea party conservatives on Capitol Hill. It will come to the House this week along with two other Constitution-themed initiatives from the new Republican majority. On Jan. 6, reports The Washington Post, some House members plan to take turns reading the Constitution aloud on the floor of the chamber, an exercise which could take a few hours, depending upon how many representatives choose to participate. In addition, last month, Supreme Court Justice Antonin Scalia accepted an invitation from Rep. Michelle Bachmann (R-Minn.) to come to Capitol Hill in the coming weeks or months to help "teach" constitutional doctrine to incoming members of the House's conservative caucus.

Under the new procedural rule, set forth in a five-page memorandum reportedly distributed last week to all House members, the House clerk will soon be required to reject outright any legislation that does not cite "as specifically as practicable the power or powers granted to Congress" that support the measure. The effect of the new standard will be to force lawmakers at the earliest stages of the legislative process to explicitly identify the perceived legal basis for the proposed exercise of federal legislative power. The purpose of the new rule presumably will be to screen out from any meaningful deliberation proposed legislation that House lawmakers believe is beyond the scope of congressional authority. That very argument -- that Congress exceeded its constitutional authority under the Commerce Clause, for example -- has been made, with force, in the ongoing legal and political battle over the validity of the Patient Protection and Affordable Health Care Act of 2010.

Beyond its symbolic power, however, it is unclear what impact the new rule will have upon the nation. Under axiomatic legal precedent, virtually all congressional action is presumed valid anyway, at least initially. Moreover, by taking their oaths of office, lawmakers swear to abide by the Constitution, and virtually all legislation is vetted for constitutional support on some level by government lawyers before it makes it to committee or to the floor of the House. It is also quite obvious, from 223 years of legal and political debate on the topic, that the text of the Constitution itself, including those portions that deal with legislative power, is susceptible to many different (and often evolving) views and interpretations, a practical reality that would likely render most "Constitutional Authority Statements" controversial and contentious.

Unintentionally previewing this situation this past June, retired Supreme Court Justice David Souter said in a commencement address to Harvard University: "The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time." Another reason, he said, "is that the Constitution contains values that may well exist in tension with each other, not in harmony." Yet another reason, he added, is that "constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them."

The requirement that all of this background work be made explicit in pending legislation will likely add a new layer of transparency to the legislative process. It will certainly force out into the open more of the legal philosophies of the representatives. But it could also add a new layer of conflict to what many voters (and some politicians) already believe is a counterproductive dynamic in Congress. What will happen, for example, if, as expected, lawmakers disagree about the merits of a particular Constitutional Authority Statement? Will Republicans and Democrats argue over that gateway issue before getting to the merits of the legislation? Will the House clerk be authorized to make judgment calls about the constitutional provisions presented? And what impact will any such statements have upon the work of the Senate, still under Democratic leadership?

Even assuming that House members can agree upon the constitutional provision or doctrine supporting a particular bill, it is unclear what legal effect, if any, the statements will have upon the courts (or the law). The legislative branch does not have the power to definitively declare its own work constitutional. That role rests squarely with Article III federal judges, who were granted life tenure under the Constitution so they could serve as a bulwark against the tyranny that can (and occasionally has) come from majority rule. Indeed, as interpreted by the Supreme Court in 1803 in its foundational case Marbury v. Madison, the Constitution grants the judiciary, and not the other two branches, broad final say over the validity of virtually all congressional action. Although the Marbury decision remains controversial in some cramped quarters, it is virtually unthinkable that the current Supreme Court, despite its conservative makeup, would now cede a large portion of its judicial review function back to the Congress by giving formal legal recognition to the Constitutional Authority Statements.

It is far more likely that the justices, and lower federal court judges, will simply consider the House statements as additional indicia of legislative intent -- if such analysis is necessary to determine the outcome of a particular case. In this sense, the statements may offer some federal judges guidance about how House members viewed the legal underpinnings of their work -- but the courts would not be bound to follow or even cite them in their opinions. House Republicans are free to strive for a role in interpreting the Constitution, in other words, but the job's already taken.