Because We Say So

SLATE
How Republicans are explaining the constitutionality of every bill they introduce.
By David Weigel

Last week's House vote to ban federal funds for NPR was a Republican slam dunk—mostly. Seven members of the party voted against the bill, and at least one did so on constitutional grounds: "The bill's treatment of NPR is arguably unconstitutional," wrote Michigan Rep. Justin Amash on his Facebook page. "Art. I, Sec. 9, of the Constitution prohibits Congress from passing bills of attainder."

With his explanation, Amash was honoring a prominent promise from the 2010 campaign, a plank in the GOP's Pledge to America. "We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified," wrote Republicans. This was music to the Tea Party, which defeated at least one Democrat because they'd asked him to point to the part of the Constitution that justified the Affordable Care Act, and he blew them off, saying he "didn't worry" about it.

Now some Republicans aren't worrying too much about it. Rep. Doug Lamborn, R-Colo., who introduced the NPR bill, filed a "Constitutional Authority Statement" that consisted entirely of six words: "Article I, Section 8, Clause 1." For those of you scoring at home, that part of the Constitution allows Congress to "lay and collect taxes, duties, imposts and excises."
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"No lawyer takes this seriously," said an exasperated Sandy Levinson, a professor at the University of Texas's law school. "As any lawyer would know, it is not hard to come up with a constitutional justification for anything you want to do."

The Constitutional Authority Statements filed so far in the 112th Congress tend to support that view. They're a fascinating exercise. More than 1,200 pieces of legislation have been introduced so far in this Congress, slightly more coming from Republicans than from Democrats, and all of them are accompanied by statements. The main lesson is the same that a lot of legal cynics predicted last year: Almost anything can be justified by citing the Commerce Clause, which allows Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" or the Necessary and Proper Clause, which allows Congress to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."

"Just the mere fact that they start these discussions, that's helpful," said Sen. Mike Lee, R-Utah, who campaigned on a promise not to vote for anything that wasn't justified in the Constitution. "The extent to which they turn out to be helpful will turn on how much actual analysis takes place, because there are ways of taking the Commerce Clause and making it apply to everything. That's not new. If that's all that happens, then this isn't going to do much."

The statements are read into the Congressional Record after legislative staff figure out what should be in them. For the most part, they are short recitations of the Commerce Clause.

It's Democrats, largely, who stick to the Commerce Clause for (largely doomed) legislation that would restore funding that Republicans want to cut. And Democrats act most interested in the rule when Republicans seem to be breaking it. When Rep. Joe Pitts, R-Pa., filed a statement calling the Affordable Care Act "unconstitutional" without citing a specific part of the Constitution, Rep. Anthony Weiner, D-N.Y., tore into him and told him to "follow the rules." But Pitts' bill got a vote anyway.

On March 15, the day Lamborn introduced his NPR defunding bill, there were 34 other pieces of legislation. All but six of them cited Article I, Section 8, most of them pointing to Clause 3, the Commerce Clause. Only occasionally does someone go the extra mile. Rep. Nancy Pelosi, D-Calif., did that after introducing a bill that would have expedited visas for two noncitizens. Rep. Dennis Kucinich, D-Ohio, did it, sort of, after introducing his annual bill to create a U.S. Department of Peace: "Congress has the power to enact this legislation pursuant to the following: The preamble to the Constitution has the following injunction: '… to promote domestic tranquility.' This is the purpose of the bill."

Rarely, a legislator uses his statement to lecture the hall about the wisdom of the founders. Right before Congress recessed last week, Rep. Paul Gosar, R-Ariz., a freshman who won with the backing of the Tea Party, introduced the Competitive Health Insurance Reform Act of 2011. He submitted, for the Congressional Record, a statement citing the authority of Article I, Section 8, Clause 3, but continued with eight paragraphs of history and precedent, from the 19th century to the 21st, from United States v. South-Eastern Underwriters Association (1944) to the Sherman Antitrust Act of 1990.

Gosar is a dentist by training, but when he introduced his bill, he did it with the gravity of a judge in the final scenes of a Grisham airport novel. "The interstate Commerce Clause does not, as some have suggested, contain federal powers that are unlimited," Gosar said. "Indeed, the original application of this clause was quite narrow, as most aptly described in Federalist No. 42. In that tract, James Madison explains that the purpose undergirding the regulation of commerce among the States was to prevent each state from imposing taxes, duties or tariffs on goods from another state that would in effect limit trade among the states and create animus that 'would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.' We follow here today, however, an accepted and long standing interpretation of the Commerce Clause that is not broad in that it regulates actual commerce involved between or transacted across state lines."

The very next piece of legislation introduced that day was the Emergency Mortgage Relief and Neighborhood Stabilization Programs Cost Recoupment Act of 2011, from Rep. Barney Frank, D-Mass. He was more concise. "Congress has the power to enact this legislation pursuant to the following: Article I, Section 8, Clause 3 (the Commerce Clause)." Over and out.