I can’t tell you how many times that, when I’ve asked someone to cite the constitutional authority for the point they are arguing, they vaguely give me an Article and Section number without explaining how said article justifies their favored course of action. Well, you will all be happy to know that our representatives in Congress are not any better at offering specifics.
At the beginning of the 112th Congress, as part of an effort to inject more transparency into the legislative process, the House adopted a rule requiring that each bill be accompanied by a Constitutional Authority Statement. The purpose of the rule was to expose the cavalier attitude of those members who desire to legislate ‘just because they can.’
Well, after a year of legislating under this rule, it appears that we are in serious need of accountability measures to provide some clarity and specificity to the authority statement. Otherwise, the rule will be regarded as yet another “transparency” gimmick of Congress.
Republican congressional staffers combed through almost 3800 bills and joint resolutions that have been introduced this year, in an effort to gauge the clarity and specificity of the Constitutional Authority Statements. For the most part, the results are pretty pathetic. Here are some of their key findings:
- Overall, 945 bills contained authority statements which do not reference a specific power granted by the Constitution. Many of these merely cited “Article 1” or “Article 1 Section 1” “Article 1 Section 8.” In other words, they just cited the fact that Congress has the power to legislate, but failed to divulge which constitutional power or specific clause is supporting their legislation.
- There were 732 bills which only referenced the commerce clause, 660 which only referenced the general welfare clause, and 321 which mentioned the necessary and proper clause without reference to a previous Constitutional clause to which the necessary and proper clause might apply.
- In total, there were 2658 Constitutional Authority Statements that were either questionable or vague. That represents roughly 69% of all bills and resolutions introduced in the 1st Session of the 112th Congress.
- While more of the vague citations are attributable to Democrat bill sponsors, many Republicans were lax in offering meaningful authority statements. Almost as many Republicans used the inexplicit commerce clause as Democrats.
This highlights a number of problems with both Congress and our understanding of the Constitution in general. First of all, attempts to reign in Congress are almost always futile because Congressmen are adept at skirting around clear legislative language. After all, we’re dealing with a bunch of lawyers – both on staff and in Congress itself. Lawyers are masters of finding, and then abusing the fine print.
But let’s not just chalk up to maliciousness what we can also chalk up to laziness. Yes, these are all smart people, but they’re also lazy. When staff drafts legislation* they don’t have enough time to be rummaging around 100-year old, dry old documents like the U.S. Constitution. They can vaguely remember their Con Law class and some decision handed down by some FDR-appointed judge that says that the commerce clause covers that, and so VOILA! Constitutional justification.
*: And, by the way, make no mistake about it – it’s Congressional staff that writes legislation. Do you think Congress critters are the ones hammering away at their laptops drafting this minutiae? Of course not. Do you really think they’re busy putting together 2,000 page documents? Uh uh. No, we are governed by 30 year olds fresh out of law school who are just biding their time until they get a job with a K Street firm that will lobby Congress on the labyrinth legislation that said staffer just penned. Meanwhile, the people who actually have to vote on these bills have, at best, skimmed them, trusting their personal staffers to give them the gist of what is written on paper. Just what our Framers envisioned, right?
Finally, let’s be honest – the FDR appointed judge probably just muttered something about the commerce clause in the ruling, offering barely much more substance than the Congressional staffer. Over the years the judiciary, through the beneficence of broad interpretation, has often stretched Constitutional meaning beyond the breaking point. If staff were inclined to beef up their Constitutional Authority Statements, we would be no more satisfied with the end result. It would still likely be utter malarkey, just better sourced and more specific-sounding malarkey.
Still, I think this exercise has one useful purpose. We all knew that Congress was just making it up as it went along, and now we have written proof of that.
Good or bad, this is what you get with Newt Gingrich:
GOP presidential frontrunner Newt Gingrich said Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.
Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room.
When asked if Congress could enforce the subpoena by sending the Capitol Police to arrest a judge, Gingrich assented.
“If you had to,” Gingrich said. “Or you’d instruct the Justice Department to send the U.S. Marshall.”
Gingrich cites the 9th Circuit’s decision that reciting the Pledge of Allegiance is unconstitutional as a prime example of why such a reform would be necessary. It’s easy to use examples like this of judicial indiscretion in order to justify such drastic action. Yet what of judicial interventions where the Court and not the legislature is acting in accord with the Constitution? I can think of several examples where conservatives cheered – rightfully – when the Supreme Court overturned an act of Congress. In US v Lopez, US v. Morrison, and Citizens United v. FEC, just to name a few cases, the Supreme Court acted on the side of the Constitution as opposed to Congress, and did so presumably against the majority will. As we speak the Supreme Court is set to hear arguments about the individual mandate and other aspects of Obamacare, and once again conservatives (again rightfully) will be hoping for the Court to rule against the democratically elected branches.
No one is more aware than me of how out of control the judiciary has been, particularly since the age of FDR. What Gingrich and other populist-conservatives fail to appreciate is that the judiciary’s wholesale assault against the Constitution is but a symptom of what plagues this Nation. After all, how did we wind up with a judiciary willing to disregard the Constitution? They didn’t just appear out of magic. Years of progressive education instilled these judges with an attitude that the Constitution is a “living, breathing” document that ought to bend to the whims of the age. More importantly, it was democratically elected leaders like FDR who put these men and women on the courts.
Furthermore, it is odd to suggest that one of the ways to stop the politicization of the judiciary is to further politicize the judiciary. Will judges act as independent arbiters of the Constitution if they know they are going to be hauled before the legislature for making the wrong call?
Long story short, I don’t think Gingrich is entirely wrong to highlight the problems of the judiciary. It absolutely must be a theme of this and any federal campaign. But Gingrich is missing the forest for the trees in singling out the judiciary when it’s an entire political philosophy – and, for that matter, political party – that is the problem.
Another thing that strikes me about this statement is how unrealistic it is. Even if Gingrich becomes president and has resounding Republican majorities in both Houses there is virtually no chance that anything like this will happen. This is mere bombast. Now, it is perhaps an exercise in rhetorical exaggeration used to highlight an important issue. But ultimately this reveals a problem that goes beyond Newt, and it is the absurdity of our presidential campaign system. Each candidate feels compelled to offer pie in the sky proposals in an effort to appeal to some constituency. Even more troubling is that the underlying attitude is that the president is some kind of emperor as opposed to the chief executive of a constitutional republic. Even though this particular proposal is likely going nowhere, it is a sad fact that the presidency has become a hyped up institution that has grown well beyond the powers outlined in the Constitution. So the ultimate irony is that while Newt is proposing a radical plan under the guise of restoring balance to the Constitution, he is only furthering the imbalance of the Constitution and the respective powers of each branch of government. And while the Star Wars prequels may have been otherwise useless, at least they taught us a valuable lesson about trying to “restore balance” to anything.