Congress has a Constitution problem — many don’t understand document

By Stephen Dinan


Each of them takes an oath to defend the Constitution, but many House lawmakers either don’t understand the founding document or don’t take its precepts seriously, according to an analysis by The Washington Times that studied the constitutional backing that representatives submitted for each of the more than 3,000 bills they introduced in 2011.


Under rules that the new Republican majority put into place, each House member introducing a bill must cite specific parts of the Constitution that they think grant Congress the authority to take the action they are proposing.


The first year’s worth of action was less than inspiring for adherents of the founding document: Many lawmakers ignored the rule, while others sliced and diced the clauses to justify what they were trying to do. One thumbed his nose at the exercise altogether, saying it’s up to the courts, not Congress, to determine what is constitutional.


Most striking of all is how little the statements mattered in the debates on the bills. They were mentioned just a handful of times on the floor, and didn’t foster the constitutional conversation that Republican lawmakers said they wanted to spark.


“A lot of people were wanting it to be a mechanism for actually forcing something to happen. And that didn’t happen. And I think it didn’t happen because, by its very nature, it’s not the right mechanism for doing it,” said Matthew Spalding, vice president of American studies at the Heritage Foundation.


He helped push for the rule two years ago and said it can be a good tool to teach about the Constitution, but it’s not the way to enforce limits.


“This thing does not bear that burden,” he said.


Republicans took control of the House in 2011 with vows to restore fealty to the Constitution after two years of fights over the limits of congressional and executive power. Constitutional authority statements were just one part of that effort.


The House also kicked off the last Congress by hosting a reading of the full Constitution on the chamber floor — the first time that had been done. On Tuesday, the 113th Congress will start with another reading.


“One of the resounding themes I have heard from my constituents is that Congress should adhere to the Constitution and the finite list of powers it grants to the federal government,” said new House Judiciary Committee Chairman Bob Goodlatte, the Virginia Republican who has organized the reading both times.


Constitutional cherry-picking


The Washington Times studied 3,764 bills introduced in the first year and found some patterns in the authority statements: The most commonly cited authority was Article I, Section 8, Clause 1, which establishes Congress‘ power to tax and spend “for the common defense and general welfare.” Close behind, however, was the commerce clause — Article I, Section 8, Clause 3 — which has come under fire by many conservatives for being stretched well beyond the Founding Founders’ intent.


Lawmakers cited 70 authorities, including 56 bills under the 10th Amendment, which reserves powers to the states rather than to Congress, and 12 under the Second Amendment, which guarantees the right to bear arms.


“The thing that jumped out is how many parts of the Constitution members of Congress seem to think grant them legislative authority,” said Doug Kendall, founder of the Constitutional Accountability Center. “I wouldn’t have thought the 10th Amendment, which is about not legislating, or the First Amendment, which says ‘Congress shall make no law,’ would be fertile ground for legislative authority.”


Like Mr. Spalding, he said the reality has fallen short of its drafters’ hopes.


“It is a good thing to require Congress to articulate why the laws it passes are constitutional. I think it was an overdue idea,” he said. “That said, if all you are required to do to meet the requirement is list ‘Article I, Section 8,’ then I’m not sure there is any utility in doing so.”


Even Mr. Goodlatte has used that shortcut, citing Article I, Section 8 in general terms for a handful of his bills. That is the section that gives the broadest outline of congressional powers on such matters as taxing, regulating commerce, controlling immigration, coining money and overseeing the military.


Mr. Goodlatte’s spokeswoman didn’t return messages seeking comment.


Constitutional shortcuts


The Republican Study Committee, the conservative caucus in the House, has monitored the statements and found some surprises.


One bill that was signed into law cited only the Constitution’s preamble. Five others cited clauses that don’t exist or were not cited under the correct clause.


“It should go without saying that members of Congress and the executive branch must know and understand their constitutional limits and requirements established by our Founding Fathers, but unfortunately, that has not always been the case,” said Rep. Steve Scalise, Louisiana Republican and chairman of the RSC.


The rules call for lawmakers to cite the powers “as specifically as practicable.” Despite that, 108 bills were introduced citing all of Article I in its entirety. That is the article that establishes Congress. Goofs, shortcuts and misreadings abounded.


Rep. Ed Perlmutter, Colorado Democrat, cited “the foreign commerce clause” — which doesn’t exist — and placed it in a portion that deals with federal debt authority.


Rep. Scott R. Tipton, Colorado Republican, sponsored a bill to promote hydropower on federal lands, citing the Constitution’s clause granting Congress the power “to make rules for the government and regulation of the land.” But the full clause gives Congress power “to make rules for the government and regulation of the land and naval forces” — clearly a reference to the military, not to federal property.


Several others made the same mistake.


Constitutional creativity


Some lawmakers got creative in their justifications.


Rep. Carolyn B. Maloney, New York Democrat, sponsored a bill to force companies to disclose publicly whether any of their supply-chain businesses use forced labor, slavery or child labor. Her constitutional justification: “Amendment 13 — Slavery Abolished.”


Rep. Don Young, Alaska Republican, cited Article I, Section II as the authority for a bill that allows Indians to collect sea gull eggs in Glacier Bay National Park. Article I, Section II, has little to do with sea gulls. It sets out the requirements for being elected to the U.S. House.


None of those bills became law.


Fealty to the practice appears to have waned over time: Rep. Paul A. Gosar, Arizona Republican, in his early citations cited specific authorities and even included discussions of court cases that he said helped clarify the extent of Congress‘ authority to act. But by the end of the first year, he was submitting standard one-sentence justifications, just as most of his colleagues were doing.


Constitutional ‘authority’


Rep. Rick Larsen, Washington Democrat, signaled that he didn’t think Congress had any business talking about constitutionality and argued that it was something better left to the Supreme Court.


“Members of Congress, having been elected and taken the oath of office, are given the authority to introduce legislation, and only the Supreme Court, as established by the Constitution and precedent, can determine the constitutionality of this authority,” he said in his authority statements.


He goofed in each of them, placing the Supreme Court in Article II of the Constitution — which actually sets up the executive branch instead. Article III sets up the court.


Spokesman Bryan Thomas declined to elaborate on Mr. Larsen’s approach.


The statements have fostered only a few real debates on the House floor, and there it has been chiefly Democrats, not Republicans, who have used the constitutional requirement to undercut Republican-sponsored bills.


In one debate on the Protect Life Act, which would have expanded prohibitions on federal funding of abortions, Rep. Alcee L. Hastings challenged the statement submitted by bill sponsor Rep. Joseph R. Pitts, Pennsylvania Republican. That statement said the bill was acting to “overturn an unconstitutional mandate,” but Mr. Hastings, Florida Democrat, said that wasn’t specific enough.


“I would also like to call into question how it’s possible for us to consider this bill on the House floor when its sponsor, Mr. Pitts of Pennsylvania, failed to provide a statement citing Congress‘ constitutional authority to enact it,” he demanded on the House floor.


His complaint went nowhere.