Bench Memos

Restoring Constitutional Authority

Roll Call had a comical/depressing story this Monday. Just as Senate Democrats were organizing the parade to celebrate passage of the Food Safety Bill, someone pointed out that the legislation is dead on arrival because “Section 107 of the bill includes a set of fees that are classified as revenue raisers, which are technically taxes under the Constitution.” According to Roll Call, House Democrats are expected to block the bill since such legislation is supposed to originate in the House. My favorite tidbit from the story: “This is not the first time that Reid has run afoul of the Constitution’s tax origination provisions.” (I’ll leave it to readers to determine whether the irony in that quote was intentional, or whether the author should have stopped the sentence after the word “Constitution.”)

The prevailing political culture has brought us to the point where “are you kidding?” is in the range of possible answers the current Speaker of the House might give you if you asked her to explain the Constitutional authorization for a major piece of legislation. I suspect constitutional conservatives won’t be surprised that the Upper House has demonstrated the same casual disregard for the Constitution’s structural restraints on power.

But stories like this should make constitutional conservatives even more optimistic about the fact that new members of the Republican caucus are being advised by Majority Leader-elect Eric Cantor to “read and re-read the U.S. Constitution.” According to news reports, Cantor is also warning new members that they should “Be prepared for two eventual questions every time you cast your vote on the House floor: did you read the bill, and is it constitutional?”

Constitutional conservatives should also be urging the new House leadership to adopt rule changes that restore structural restraints and make the Constitution relevant to the daily work of lawmakers. In 1995, Sen. Spencer Abraham — one of the original founders of The Federalist Society and my former home-state senator — proposed what has come to be known as the Enumerated Powers Act. In short, it would have required legislators to state the specific constitutional authority for any Act of Congress. The legislation has since been picked up by Sen. Coburn and Rep. Shadegg, but most of their colleagues have treated it with almost as much disregard as they have treated the Constitution itself. I think it is highly unlikely that Senate Democrats would agree to such legislation, as simple and sensible as it may seem, but there is no reason that the House could not adopt something similar as a House Rule.     

I’m not naive enough to believe that such a move, on its own, would compel lawmakers to suddenly behave as though they care about limited constitutional government. But it would certainly be a big step in the right direction. If two decades of debating originalism conditioned the environment for Justice Kagan to sprinkle her Senate testimony with nuggets like “we are all originalists,” then perhaps small but important steps like these could condition the environment for the Constitution to regain its rightful place as the lodestar for officials in Congress.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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