Wednesday, December 29, 2010

House Republicans and the Constitution

House Republicans yesterday released a proposed rules package for the 112th Congress that included two items related to the Constitution: Republicans have proposed a reading of the Constitution on the floor on January 6; and they have proposed a requirement that all bills contain a reference to Congress's constitutional authority to enact the legislation.  (The package includes several other important proposed rules, including proposed rules that would increase transparency and rules that would limit spending by replacing the PayGo rule with a "cut-go" rule.)  

The Republicans' goal is "to refocus members of Congress, with every bill they introduce, on the Constitution."  Whatever one thinks about this--a laudable goal, or a thinly veiled attempt to promote just one interpretation of the Constitution--it's unnecessary.  House members already take an oath to support the Constitution, and House rules (Rule XIII, 3(d)(1)) already require committee reports on bills to name the congressional authority for the legislation.  (The proposed rules do away with this latter requirement.)


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One thought that crosses my mind is this:

Under the rational basis test and other judicial doctrines, the courts essentially defer to Congress on the issue of whether certain types of legislation are constitutional.

If bills are required to reference the specific provision of the Constitution from which Congress claims to derive authority to enact the legislation in question, will that requirement have the perhaps unintended consequence of reducing even further the level of scrutiny the courts apply to Congressional acts, on the theory that Congress' determination that a certain provision of the Constitution authorizes it to act as it has is entitled to deference?

Posted by: grlampton | Jan 4, 2011 10:38:33 AM

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