House GOP may require constitutional test for all new legislation

posted at 10:10 pm on December 16, 2010 by Allahpundit

Insofar as this sort of thing might encourage the public to think more critically about constitutional limits on government, I like it. Insofar as it’s aimed at reining in Democratic legislative excess … I don’t get it.

Rep. Rob Bishop (R-Utah), the head of the House Rules Working Group, on Thursday said the GOP transition team will recommend the adoption of a rule requiring lawmakers to provide constitutional authority for every bill.

“The Constitution is not that long. The operating manual for a Toyota Camry is more than five times longer, so it should not be that difficult,” Bishop said.

GOP leaders intended to send out a memo later Thursday providing guidance to members of the 112th Congress on how to deal with the new requirement, and suggest “resources they can go to to assist,” said Rep. Greg Walden (R-Ore.), the chairman of the transition team.

“The Constitution will suddenly become en vogue again” in the next House, Bishop said.

Well, it’ll be en vogue again for the small class of political junkies who follow Congress closely enough to pay attention to debate over constitutional points. Which, as I say, is why I like it, but don’t expect the media to suddenly convert to strict constructionism just because Republicans are now forcing them to pay attention to this. Beyond that, two things. One: If you’re thinking that this might somehow deter statist liberals from offering more ambitious legislation, why exactly are you thinking that? They’ve defended something as novel as the ObamaCare mandate with not one but two constitutional powers (Commerce and Tax and Spend) and doubtless could find some small peg in the text of the Constitution itself or Supreme Court precedent on which to hang any bill they like. Even if their reasoning is lame, does anyone seriously believe that votes on either side of the aisle will turn on it? A Blue Dog who finds a progressive’s constitutional argument wanting will simply shrug it off and vote for it anyway on grounds that it’s up to the courts to decide.

Two: To the extent that anyone’s actions will be constrained by this, it’ll be the GOP’s. This is an open invitation for libertarians to confront the Republican leadership on traditional constitutional objections like the lack of any formal declaration of war for Afghanistan or Iraq or the absence of any textual authority for the Department of Education. If Boehner et al. are going to be constitutional sticklers with Democratic bills, what happens the next time the GOP passes funding for education or there’s a new high-profile terror arrest and we get back into the Miranda question again? Seems like they’re setting themselves up either to spend a lot more of their time as a congressional majority defending the constitutional merits of their own bills (Democrats will attack them on it at every opportunity, partly to make hay and partly to slow down the GOP’s agenda) or to ignore the constitutional debate and risk being attacked as hypocrites by the media. I don’t get it.


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the GOP transition team will recommend the adoption of a rule requiring lawmakers to provide constitutional authority for every bill.

It’s this what they should have been doing all along? If it isn’t, does that mean some laws don’t meet constitutional muster and can be vacated?

Tommy_G on December 16, 2010 at 10:14 PM

How about if they just read it first

Kini on December 16, 2010 at 10:14 PM

I’ll believe it when I see it.

roninacreage on December 16, 2010 at 10:15 PM

Can it be applied to older legistlation ? Such as Obamacare?

William Amos on December 16, 2010 at 10:16 PM

To the extent that anyone’s actions will be constrained by this, it’ll be the GOP’s. This is an open invitation for libertarians to confront the Republican leadership on traditional constitutional objections like the lack of any formal declaration of war for Afghanistan or Iraq or the absence of any textual authority for the Department of Education.
[snip]
I don’t get it.

Clearly not.

Firefly_76 on December 16, 2010 at 10:16 PM

How about they start challenging the thousands that are already on the books that don’t pass the Constitutional test?

roninacreage on December 16, 2010 at 10:17 PM

Clearly not.

Firefly_76 on December 16, 2010 at 10:16 PM

Please, enlighten me. Explain what this will achieve.

Allahpundit on December 16, 2010 at 10:18 PM

How about if they just read it first

Kini on December 16, 2010 at 10:14 PM

Winner.

As far as I’m concerned, /thread.

Vyce on December 16, 2010 at 10:18 PM

Why is there even a question about whether this should be the rule or not?

Oldnuke on December 16, 2010 at 10:19 PM

Man am I gonna get worn out
/commerce clause

TheVer on December 16, 2010 at 10:19 PM

Look! It’s Nikki Haley in the picture! She’s major, y’all! MAJOR!!

SouthernGent on December 16, 2010 at 10:20 PM

How could anyone be against this?

Ronnie on December 16, 2010 at 10:20 PM

Rep. Rob Bishop (R-Utah)

No relation.

Bishop on December 16, 2010 at 10:22 PM

Please, enlighten me. Explain what this will achieve.

Allahpundit on December 16, 2010 at 10:18 PM

It’s a preventative measure. Why should it achieve anything?

Ronnie on December 16, 2010 at 10:23 PM

It’s a preventative measure. Why should it achieve anything?

What is it preventing?

Allahpundit on December 16, 2010 at 10:26 PM

Nice analysis, Allahpundit. Its an empty, and quite possibly counterproductive, gesture.

cool breeze on December 16, 2010 at 10:27 PM

Rep. Rob Bishop (R-Utah)
No relation.

Bishop on December 16, 2010 at 10:22 PM

Bishop:Nice try,he drives a Rice-Burner,a
Kawasaki I bet!(sarc).

canopfor on December 16, 2010 at 10:27 PM

Please, enlighten me. Explain what this will achieve.

Allahpundit on December 16, 2010 at 10:18 PM

Because ostensibly constraining big government conservatism is almost as important as constraining statists on the left side of the aisle. We already know the left only uses the constitution as a fig leaf – when convenient. If we can shame the GOP into some measure of self-restraint … all the better.

Firefly_76 on December 16, 2010 at 10:28 PM

The first time the GOP justifies a bill because it “promotes the general welfare” they are going to catch hell from all sides, and they will deserve it.

Mark1971 on December 16, 2010 at 10:28 PM

Please, enlighten me. Explain what this will achieve.

Allahpundit on December 16, 2010 at 10:18 PM

This will achieve millions of comments on this website, with countless hours of our so called “lawyers” arguing well into the night.

It’s a blogger’s wet dream and then you can go out a buy 6 IPads.

Knucklehead on December 16, 2010 at 10:30 PM

What is it preventing?

Allahpundit on December 16, 2010 at 10:26 PM

I’ll tell you after you list all the accidents that were prevented by the stop sign down the street.

Ronnie on December 16, 2010 at 10:31 PM

I don’t get it.

Possibilities:

1. I could be posturing about liberty and limited government, something the GOP has a lot of practice with.

2. They feel the Tea zeitgeist.

3. They feel guilty, like maybe we should have been doing this already, eh?

Maybe it is all three!

This is an open invitation for libertarians to confront the Republican leadership on traditional constitutional objections like the lack of any formal declaration of war for Afghanistan or Iraq or the absence of any textual authority for the Department of Education.

I’m no “L”ibertarian, but shouldn’t we have declared war on Iran perhaps? They have been at war with us since Beirut.

And just why should the federal government be spending money on education?

AshleyTKing on December 16, 2010 at 10:33 PM

Oops, god forbid “I” could be posturing.

AshleyTKing on December 16, 2010 at 10:35 PM

Because ostensibly constraining big government conservatism is almost as important as constraining statists on the left side of the aisle.

Give me an example of a bill the GOP might otherwise introduce but won’t once it knows it has to make a constitutional argument for it.

Look at it this way: Anything the GOP passes can be challenged in court by you or me. Are you suggesting that conceivably they might pass something so obviously lacking in constitutional authority that they wouldn’t even try to defend it in court? Of course not. They can always come up with some sort of argument to back up the bills they pass, however weak it might be. That’s my point in the post. This isn’t an exacting requirement.

Allahpundit on December 16, 2010 at 10:35 PM

If Boehner et al. are going to be constitutional sticklers with Democratic bills, what happens the next time the GOP passes funding for education or there’s a new high-profile terror arrest and we get back into the Miranda question again?

sorry charlie, there’s ain’t no miranda provision in the constitution.

ted c on December 16, 2010 at 10:36 PM

How about if they just read it first

Kini on December 16, 2010 at 10:14 PM

This!

bluemarlin on December 16, 2010 at 10:36 PM

On balance, the GOP will have far less problems citing Constitutional authority for legislation than liberal democrats.
Even in the example of the Education department, are liberals really sure they want to challenge the GOP on Constitutional authority for that department. Should they do that, the GOP can say, “You know, you’re right. Let’s abolish it.” If it’s Libertarians, who cares? Both parties already ignore them.

Curmudgeon on December 16, 2010 at 10:36 PM

It seems to me that getting the need for Constitutional authority into the public discussion more often would at least remind those of us who forgot our civics that such a requirement exists. And would make Nancy “Are you serious?” Pelosi’s attitude that much more obviously unacceptable.

mikeyboss on December 16, 2010 at 10:36 PM

They can always come up with some sort of argument to back up the bills they pass, however weak it might be. That’s my point in the post. This isn’t an exacting requirement.

Allahpundit on December 16, 2010 at 10:35 PM

right and then they just cross their fingers and hope that it doesn’t get challenged. The dems just try to stack each and every law school, judge seat etc with every liberal they can find so they really don’t have to worry much when it gets to that level.

yeah, buddy, that shiite hasta change.

ted c on December 16, 2010 at 10:38 PM

What is it preventing?

Allahpundit on December 16, 2010 at 10:26 PM

It’s been well over two centuries, and all the “good” laws have long since been enacted. If this policy keeps those 535 meddling idiots from micromanaging the US, it’s a plus. For all I care, they could have a lottery after every vote in congress and shoot 1% of the membership — just to make sure they only acted when action is necessary.

cthulhu on December 16, 2010 at 10:39 PM

DOH MY EYES! Pelosi (Smeagol) on CSPAN!

bluemarlin on December 16, 2010 at 10:39 PM

That’s my point in the post. This isn’t an exacting requirement.

Allahpundit on December 16, 2010 at 10:35 PM

Ah, but you’re assuming it’ll be business as usual. I’m pretty sure it’ll be BAU, but there is an outside chance this new crop really knows the reason they were elected. Plus, Obama’s communist views will make it easy to actually conform to this.

SouthernGent on December 16, 2010 at 10:40 PM

The constitutional “test” ought to be made in the deliberative arguments presented ahead of voting for the bill. These fellers need to be quoting the FEderalist Papers and building serious and cogent arguments for these bills. This fast food crap of forklifting these monster bills out and just sayin’, there it is vote for it, crap has got to stop.

ted c on December 16, 2010 at 10:42 PM

Using it as a pretext to departmental shutdowns? Dude, that sounds awesome. But this will surely only apply to “new” legislation; otherwise, something like the continuing resolution would have to outline the constitutionality of all current federal spending.

theperfecteconomist on December 16, 2010 at 10:42 PM

the more often that the Constitution is used as a standard, the better. Stand and defend your legislation. If you can’t, well, sorry bub, next bill. Put the money back in the kitty.

ted c on December 16, 2010 at 10:43 PM

Another thing it could do is prevent the government from going to court with a handful of darts to see which way they can make their law stick (obamacare). Their defense will be determined when it’s voted on.

Ronnie on December 16, 2010 at 10:46 PM

I’m no “L”ibertarian, but shouldn’t we have declared war on Iran perhaps? They have been at war with us since Beirut….

AshleyTKing on December 16, 2010 at 10:33 PM

Umm, you might want to bring that back a few years. There was a period of about 444 days in 1979-81 that were a little more direct than Beirut.

JeffWeimer on December 16, 2010 at 10:47 PM

Insofar as it’s aimed at reining in Democratic legislative excess … I don’t get it.

Really?
(Didn’t you say you graduated from law school?!)

It’s pretty simple, really: Virtually all of the legislation we’ve been seeing for at least the last 50 years has been un-Constitutional.

This is a great start.
Plus, it may kick open the door to start the defunding of all those agencies and programs that have no Constitutional basis, either.
I like it a lot!
This is why we sent 63 new conservative (Republican) Congresspersons to Washington!

Jenfidel on December 16, 2010 at 10:48 PM

They’ve defended something as novel as the ObamaCare mandate with not one but two constitutional powers (Commerce and Tax and Spend)

Have you been drinking? It’s not tax and spend (although we know they do enough of that), But Necessary and Proper.

JeffWeimer on December 16, 2010 at 10:49 PM

I’m for it as it provokes discussion. It’s even a natural reaction to the Nanny Botox response ‘Are you serious?’

The answer is ‘YES’. She didn’t defend it chapter and verse. There is a good reason why she didn’t.

GnuBreed on December 16, 2010 at 10:53 PM

This isn’t an exacting requirement.

Allahpundit on December 16, 2010 at 10:35 PM

So, why not pass it then? So what if it’s a feel-good measure only? At the very least it requires legislators to “think” and make some justification for the legislation tethering it to the constitution. The rest of your argument assumes you or I have standing to challenge laws, etc.

I’m not saying I disagree; the requirement won’t accomplish much. I’d much rather see a requirement that legislation requiring reading bills on the floor before a vote [would automatically require short bills] or that legislation can only cover one topic at a time [no more omnibus bills; no more last minute amendments on 'must pass' issues to force through unpopular laws].

Firefly_76 on December 16, 2010 at 10:54 PM

I’m for it as it provokes discussion. It’s even a natural reaction to the Nanny Botox response ‘Are you serious?’

The answer is ‘YES’. She didn’t defend it chapter and verse. There is a good reason why she didn’t.

GnuBreed on December 16, 2010 at 10:53 PM

Absolutely. Answering that stupid question is an achievement right there.

Ronnie on December 16, 2010 at 10:54 PM

* I’d much rather see a requirement that legislation requiring reading to read bills on the floor before a vote *

Firefly_76 on December 16, 2010 at 10:55 PM

Overall, I think it’s a good idea, just because of the cleansing sunlight in it.

Simple concept: Justify it. It would make court challenges easier if there were recorded justifications. And it might make legislators more cautious and not try to roll the dice.

It may constrain Republicans more; but don’t they need it, too?

JeffWeimer on December 16, 2010 at 10:56 PM

Just to be double annoying – the Constitution? Whatever.

Branch Rickey on December 16, 2010 at 10:57 PM

So, if there are no objections other than “Are you serious?” and “I don’t get it.” the motion is passed.

Ronnie on December 16, 2010 at 10:59 PM

This is an open invitation for libertarians to confront the Republican leadership on traditional constitutional objections like the lack of any formal declaration of war for Afghanistan or Iraq or the absence of any textual authority for the Department of Education.

Coming from a SoCon Neocon, what is wrong with this? There should be a formal declaration of war and I have no problem with getting rid of the D.O.E. Libertarians aren’t alone here.

Daemonocracy on December 16, 2010 at 11:16 PM

Two: To the extent that anyone’s actions will be constrained by this, it’ll be the GOP’s.

This may be true for 112th congress (since, yes, GOP controls the House agenda for next 2 years). But take the long-term view, when the Democrats might re-take the House or GOP may have a smaller majority. This will provide a starting point where even a Democratic House can be pressured into justifying their bills with Constitution. And, even before then, who knows, maybe the Senate can be pressured into a similar rule.

This rule just makes sense (for small-government conservatives anyway) with the long-term view—and for conservatives, it restricts the GOP just the right way.

(Also, remember how liberal excuse for whole lot of things last year has been “Bush did that too”? We can deprive liberals of that excuse at least on this issue.)

novakyu on December 16, 2010 at 11:24 PM

“The Constitution will suddenly become en vogue again” in the next House, Bishop said.

Well, it’ll be en vogue again for the small class of political junkies who follow Congress closely enough to pay attention to debate over constitutional points. Which, as I say, is why I like it, but don’t expect the media to suddenly convert to strict constructionism just because Republicans are now forcing them to pay attention to this.

I was reading — for several of the recently past hours — comments associated with various news articles on a newssite. And, after doing so, I am quite depressed as to the state of intellect among the ‘general’ or average citizen or resident of the U.S. (assuming most comments I read are by citizens or residents).

So I strongly doubt that many of whom these then send to Congress are of any greater intellect.

One can print information ’till Kingdom come and so very few understand what’s written, or even read or study it.

This isn’t any reason to disallow the Constitutionality requirement for legislation. Which I think would be a VERY GOOD BASIS for all future legislating efforts.

I am simply dispairing that our human intellectual capabilities are what they are and appear, compared with times past, to be quickly degenerating into stupidity. It is mind boggling to what degree so many people are intellectually impaired, or whatever the thing may be, otherwise not very bright, if intelligent at all.

Lourdes on December 16, 2010 at 11:31 PM

Umm, you might want to bring that back a few years. There was a period of about 444 days in 1979-81 that were a little more direct than Beirut.

JeffWeimer on December 16, 2010 at 10:47 PM

I stand corrected.

AshleyTKing on December 16, 2010 at 11:33 PM

Look! It’s Nikki Haley in the picture! She’s major, y’all! MAJOR!!

SouthernGent on December 16, 2010 at 10:20 PM

I know it’s WAY too early to start the “Haley/20whatever”, but from what I’m already seeing this will NOT be the highest office she will attain.

This gal don’t mess around. I don’t think she even knows how to spell mess around.

It’s going to be great fun watching her work.

gary4205 on December 16, 2010 at 11:35 PM

It comes down to comprehension.

One either comprehends contents in the Constitution or doesn’t.

I guess it’s similar to someone, say, studying String Theory (Physics) and sitting on a public bus/subway and talking about it: few to no one would even understand what was being said and would judge the speaker as being “crazy” or “nuts” or similar.

I guess that’s why intelligence is graded. The majority are average and then there’re the lower than average and the few who gradually work their way above average. It’s a few who are more intelligent than most and the Constitution was certainly written by some of those.

But the Left has to be “reined in” severely moreso than ever before. They truly are out of control today and I see so few of them today who even CARE about the Constitution if not seem to feel prideful when they bypass it, as if it’s a tedious, old, aged wasted thing.

Lourdes on December 16, 2010 at 11:35 PM

Can it be applied to older legistlation ? Such as Obamacare?

William Amos on December 16, 2010 at 10:16 PM

Nancy Pelosi revealed her hand and the Democrats’ hand with her aghast “are you kidding” retort to being asked if the Obamacare leg. was “Constititional.”

In other words, she didn’t know, “assumed” it was, took someone’s word for it, whatever.

And I think Obama has relied on the legislation being too embedded to be “repealed” == Constitutionality wasn’t his concern, he and the Left relied on the difficulty of a web of changes being too intrinsically woven into our nation’s economy and government to be “revoked” easily or ever afterward.

In other words, they “damned the Constitution”. Worse, their conscience’s seem to be clear about having done so.

Lourdes on December 16, 2010 at 11:40 PM

What is it preventing?

Allahpundit on December 16, 2010 at 10:26 PM

Ever thought about leaving New York city and coming to say, Texas? It would be good for you to live among the great unwashed. Those kitty cats would love it here.

For a truly sharp cat who can analyze a lot of things well, when you miss the boat you miss it big time.

How hard is this one to grasp?

If a person can’t legally justify (and by legally, I mean constitutionally) legislation, it shouldn’t be put into law.

As others have said, most of the laws in the last 100 years would most likely fail this test. The federal government has way over stepped it’s bounds.

If they are serious though, I mean really serious, they should not only make it a House rule, but write a constitutional amendment requiring it. Make it “etched in stone”

While they are at it, throw in some term limits for these weasels.

gary4205 on December 16, 2010 at 11:44 PM

And just why should the federal government be spending money on education?

AshleyTKing on December 16, 2010 at 10:33 PM

Another example of that reliance on the web of hooks and changes thing I was describing earlier: the Left relies on these extensive “webs” of hooks and ladders, so to speak, they’ve created via legislation that is so enmeshed in and by government that it damns the Constitutionality issue to discard it. “Even if” unConstitutional, it’s too enmeshed throughout the nation to be eradicated or repealed afterward.

Same as Obamacare. I’m sure I’ve described a key aspect of the Democrats’ playbook accurately here.

Lourdes on December 16, 2010 at 11:45 PM

This is an open invitation for libertarians to confront the Republican leadership on traditional constitutional objections like the lack of any formal declaration of war for Afghanistan or Iraq…

Pardon me, but didn’t Congress issue not one, but two, formal declarations of war for Afghanistan and Iraq?

Jenfidel on December 16, 2010 at 11:46 PM

Look at it this way: Anything the GOP passes can be challenged in court by you or me. Are you suggesting that conceivably they might pass something so obviously lacking in constitutional authority that they wouldn’t even try to defend it in court? Of course not. They can always come up with some sort of argument to back up the bills they pass, however weak it might be. That’s my point in the post. This isn’t an exacting requirement.

Allahpundit on December 16, 2010 at 10:35 PM

The Constitution is twelve pages long.

I’d like to see Congress STOP passing legislation for a long time, if not nearly always except for the few emergency and Omnibus/spending bills and even those pared way back.

A very big problem our nation has is all this “legislation” writing and passing taking place every year. What’s wrong with relying on the Constitution only for a while and letting all this legislating-madness just stop?

Congress somewhere, sometime, has taken itself far too seriously and seems to think that we “have to have” laws compounded laws compounding laws compounding…

Lourdes on December 16, 2010 at 11:50 PM

AshleyTKing on December 16, 2010 at 11:33 PM

I remember that time. The increasing day count of the hostages. Carter could not have escaped that, and he tried and failed.

Cronkite, daily adding one more nail – it was too big even for him to gloss over.

JeffWeimer on December 16, 2010 at 11:57 PM

I’d much rather see a requirement that legislation requiring reading bills on the floor before a vote [would automatically require short bills] or that legislation can only cover one topic at a time [no more omnibus bills; no more last minute amendments on 'must pass' issues to force through unpopular laws].

This would be a much bigger game-changer than a Constitutional “test.”

YehuditTX on December 17, 2010 at 12:04 AM

YehuditTX on December 17, 2010 at 12:04 AM

I’m with that, too.

JeffWeimer on December 17, 2010 at 12:10 AM

What good will randomly referencing a line in the Constitution for every new bill do? If you’re liberal enough, the Third Amendment (or any other combination of words imaginable) can excuse absolutely any power grab you want to make.

logis on December 17, 2010 at 12:17 AM

The Constitution specifies that only Congress may declare war. But it doesn’t specify what the form of that declaration must be.

Congress passed an authorization to use force, both before we invaded Afghanistan, and again before we invaded Iraq. If you want to claim that those don’t meet the Constitutional requirement, make your case.

LarryD on December 17, 2010 at 12:23 AM

Perhaps the Legislators ought to be forced to actually legislate — fire all their staff and write the legislation themselves.

As it is, what we’ve evolved into is basically a kabuki theatre called Congress that does some sort of song and dance over legislation written by some shadowy collective of unnamed staffers. Most of the most prominent staffers whose bosses were fired by the voters are likely to be quietly absorbed into other staffs or hired by the bureaucracies they defined in legislation so they can continue on with their task.

In other words, our nation is really being directed and controlled by those lurking in the shadows, not the elected.

drfredc on December 17, 2010 at 12:56 AM

The really fun part of this rule will be when someone challenges a law with such a citation in SCOTUS. It would make for some very interesting arguments.

Fighton03 on December 17, 2010 at 1:16 AM

A Blue Dog who finds a progressive’s constitutional argument wanting will simply shrug it off and vote for it anyway on grounds that it’s up to the courts to decide.

Jefferson opined that the SC had no special authority to interpret Constitutionality. Every branch was expected to do so at all times.

You can argue that just because Jefferson said this, and abided by it while President, doesn’t give it the force of law. But it should be pointed out this particular proposition rests on stronger legal merit then the “separation of church and state” which comes from a private letter from Jefferson.

18-1 on December 17, 2010 at 1:19 AM

House GOP may require constitutional test for all new legislation

Just new legislation? They can start by explaining why the Partial-Birth Abortion Ban Act is constitutional.

crr6 on December 17, 2010 at 1:35 AM

In all seriousness though, I actually think this is a pretty good idea.

crr6 on December 17, 2010 at 1:39 AM

Just new legislation? They can start by explaining why the Partial-Birth Abortion Ban Act is constitutional.

crr6 on December 17, 2010 at 1:35 AM

Equal protection–the baby in the womb about to be born is protected from being murdered…horribly.

Jenfidel on December 17, 2010 at 2:43 AM

If they can use said test to grind everything to a halt, or better still, send a Constitutionally sound bill to the Senate and force the Democratic Senate to alter it in ways that make it not so, it’s a perfect trap…for Obama to step right into.

Again…and again…and again…

SuperCool on December 17, 2010 at 2:46 AM

I don’t get it.

The tide has turned. Americans have had it with the irresponsible governance by both sides. WE $hitcanned 65 demrats on Nov 2nd and the progressives ignore that at their own peril. I hope they play the games you suggest. We’ll $hitcan them too in two years!

csdeven on December 17, 2010 at 3:24 AM

This isn’t an exacting requirement.

Allahpundit on December 16, 2010 at 10:35 PM

The perfect should not be the enemy of the good, and the fact there will be ANY standard must be seen as progress. If a bill requires convoluted and contorted logic to justify itself under the Constitution, the certification will set that out in black and white for all to see.

The great earth-shaking changes in our polity are relatively rare; progress is far more often realized by small increments in the desired direction. Democrats have understood this principle to enact their welfare state over the decades, and Republicans need to learn to appreciate the small victories as well as the large.

Adjoran on December 17, 2010 at 5:00 AM

Pardon me, but didn’t Congress issue not one, but two, formal declarations of war for Afghanistan and Iraq?

Jenfidel on December 16, 2010 at 11:46 PM

No, they “authorized” military engagement. There has not been a formal declaration of war since WWII.

DrMagnolias on December 17, 2010 at 5:29 AM

How about if they just read it first

Kini on December 16, 2010 at 10:14 PM

me likey!

cmsinaz on December 17, 2010 at 6:18 AM

This will help . . . the leftist Democrats are like an insidious cancer, just when you think you’ve poisoned them into remission they reappear. There must be constant and intense vigilance.

rplat on December 17, 2010 at 6:33 AM

No, they “authorized” military engagement. There has not been a formal declaration of war since WWII.
DrMagnolias on December 17, 2010 at 5:29 AM

Now we just declare war on abstractions; war on poverty, war on addiction, war on obesity, etc. etc. Unfortunately we never have, never can and never will win any of those wars.

tommyboy on December 17, 2010 at 6:43 AM

will recommend the adoption of a rule requiring lawmakers to provide constitutional authority for every bill.

This wouldn’t stop anything. Democrats would just cite the commerce and general welfare clauses for everything. Thanks to “progressive” jurists they have become the junk drawer clauses from whence all the Constitution’s “living and breathing” comes.

American Elephant on December 17, 2010 at 6:43 AM

…the road to hell is paved with good intentions.

Requiring a law to institute the Constitution is not only convoluted, but another venue to mutilate what was meant to be preserved.

Every new option big government creates “for us” and “on our behalf” is another Pandora’s Box.

Minimalism goes the distance during famine.

Stick to minimalist federal governance

Quit arguing over recipes for disaster, and cut the bureaucracies along with the tainted pork. It’s the spending, stupid, that keeps our economy ruined and worse each week.

How does the GOP intend to play in Congress according to the Constitution when it won’t play by constitutional rules itself, now, amongst its own members?

As if the Tea Party buys propaganda bluster, insulting to constitutional conservatives. No one is fooled. The GOP is married to the Democratic-Socialists, sharing the same over-spending bed; in other words, the Bush-GOP represents progressive socialism.

Buying a new bedspread isn’t about to get rid of the bedbugs.

Get the Constitutional Conservative Platform Agenda together, with Republican caucus assignments to produce minimalist bills.

We will hold every member of Congress accountable beginning with the Republicans newly elected to do just that. Those without seniority MUST conquer the Washingtonians. And how will that occur with more GOP invested authoritarianism applied as if to “protect the Constitution”?

maverick muse on December 17, 2010 at 6:58 AM

(Will a Ron Paul libertarian kindly explain why he voted against Bachmann’s effort to hold the line on another federal trillion appropriated via more debt/$pent?
…it’s early, more coffee)

maverick muse on December 17, 2010 at 7:02 AM

No, they “authorized” military engagement. There has not been a formal declaration of war since WWII.
DrMagnolias on December 17, 2010 at 5:29 AM

Now we just declare war on abstractions; war on poverty, war on addiction, war on obesity, etc. etc. Unfortunately we never have, never can and never will win any of those wars.

tommyboy on December 17, 2010 at 6:43 AM

Choose wisely as the deceivers have.

Declare War on the Politically Correct.

maverick muse on December 17, 2010 at 7:05 AM

I notice AP has been “jumping in” from time to time to repeatedly ask “What will it achieve?” I find it funny he would have originally posed that question by referring to the Department of Education.

AP, I personally do not believe there is ANY constitutional authority for a Department of Education at the federal level. Hence it should be abolished (i.e. de-funded)and the tax $$$ kept be the several States. OTH, if you can cite some compelling constitutional authority for the establishment of a federal DOE, I’m ready to listen

alwyr on December 17, 2010 at 7:10 AM

I think the purpose is twofold: First, to make Congressmen think about what they’re doing and second, to demonstrate to the SCOTUS how the commerce clause has been used and abused more than a Bangkok whore.

My problem with this is that, as a House rule, it will just be revoked the next time the Democrats get the majority. To to this right, you need to make it an amendment.

Kafir on December 17, 2010 at 7:14 AM

Why not read the complete Constitution at the open of the new Congress, just so they all know what it is.

And then figure out what their oath of office is all about.

tarpon on December 17, 2010 at 7:37 AM

To the extent that anyone’s actions will be constrained by this, it’ll be the GOP’s. This is an open invitation for libertarians to confront the Republican leadership on traditional constitutional objections like the lack of any formal declaration of war for Afghanistan or Iraq or the absence of any textual authority for the Department of Education.

You make it sound as if its a bad thing.

mizflame98 on December 17, 2010 at 7:40 AM

Just how are they going to implement this monster. I say ‘monster’ because how many different Constitutional Scholars are they going to employ to review and come to consensus that the proposed legislation will pass muster, let alone a court challenge.

That brings up the question, how many Constitutional lawyers will have to be hired to argue the merits of the proposed legislation?

I don’t think they can get their arms around this ‘monster’s neck’ to reign it in. I don’t think its workable because there has been too many laws stretching the intent of the “Commerce Clause” into a ‘Swiss Army Knife’ for legislating away the liberty of the American people.

If they try to enact something like this, it will end up being the focus of the next Congress and nothing will be done to de-fund the gubmint and make it smaller.

I think they would spend their time more wisely by gutting EPA, DofEd, DoE, USDA, DHS, HHS, DoT, and everyone of the CZARs that haven’t been scrutinized by congress, to start with. That should keep them busy for about 2 years and all the while demonstrating they can follow through with their campaign promises, some truth in politics, I know that is an oxymoron, but I can always hope.

Almost forgot…GET RID OF THE PORK!

belad on December 17, 2010 at 8:04 AM

Step by Step, the new Congress is finally on the road to insuring that any bill/law meet a criteria that proves it to be Constitutional.

Other steps would be:

No bill can contain earmarks

No bill can contain ridders (the hidden laws)

Must provide a Cost Benefit analysis performed by an agency such as the GAO

Must not duplicate an existing law/rule

Must be written in clear text (concise not convoluted)

I am sure the Akami (Hawaiian for intelligent) Hot Air viewers can think of a few others so let us know what they would be.

MSGTAS on December 17, 2010 at 8:32 AM

Anything the evil Republicans do to prevent the US from acting like a backwards @$$ 3rd world country, is racist!

MNHawk on December 17, 2010 at 8:42 AM

The place to make constitutionally sound laws is NOT through the SCOTUS but IN Congress.

Add this to the ‘single item’ bill structure and each and every component of government must have a positive tie to the Constitution stated EXPLICITLY so that any challenge to any piece of legislation will have a starting point within the Constitutional structure. If Congress actually has to tie things back to the Constitution, and can’t do so and finds no language to allow funding bills to exist, they should not be passed and will be challenged on individual grounds for their language. I would love to see where the EPA gets its justification or even the Dept. of Education or Energy or Agriculture.

If the language of the ‘general welfare’ does mean the entire Nation as a whole, then enriching some farmers, some companies and some individuals does not pass the sniff test. It doesn’t matter what sort of ‘tradition’ an agency has, no Congress is bound by any prior Congress for funding of programs.

I do welcome this: clean, small, clearly tied bills lead to transparency in government and its activities. Pork and making ‘omnibus’ amendments is opaqueness added to what should be a clean process. If Boehner can hold to this, and he will be pressed NOT TO, then those courses by Bachmann may have far, far more than freshmen show up as the Incumbistani asshats who feel there is nothing they can’t do will now find themselves scrambling to understand the document they swore to uphold and defend.

ajacksonian on December 17, 2010 at 8:47 AM

what happens the next time …there’s a new high-profile terror arrest and we get back into the Miranda question again?

If the arrestee is a citizen he should be charged with treason, given a fair trial then a fair hanging.

If he’s not a citizen he should be tortured for info then hung.

Someone please show me how either outcome does any violence to the Constitution.

Akzed on December 17, 2010 at 9:10 AM

how bout’ retroactively back some 70 years in addition to new bills?

sbark on December 17, 2010 at 9:17 AM

Meh. They’ll just cite the commerce clause for everything.

Farmer_Joe on December 17, 2010 at 9:24 AM

If they were serious, then their first order of business would be to vote on the Enumerated Powers Act.

Send_Me on December 17, 2010 at 9:40 AM

“It’s in the ‘good and welfare clause.’”

Akzed on December 17, 2010 at 9:44 AM

Just new legislation? They can start by explaining why the Partial-Birth Abortion Ban Act is constitutional.

crr6 on December 17, 2010 at 1:35 AM

Equal protection–the baby in the womb about to be born is protected from being murdered…horribly.

Jenfidel on December 17, 2010 at 2:43 AM

The equal protection clause isn’t a power of Congress, it’s a prohibition against the States. I guess you could be referring to Section 5, but SCOTUS has said fetus’s don’t constitute a “person” within the meaning of the 14th amendment, so that wouldn’t make any sense either.

They actually passed it under the Commerce Clause. Ironic, isn’t it?

crr6 on December 17, 2010 at 10:09 AM

what happens the next time the GOP passes funding for education

There is no constitutional authority for this. Obviously, it won’t past muster and will get shot down, just as it should.

paulsur on December 17, 2010 at 10:24 AM

SCOTUS has said fetus’s don’t constitute a “person” within the meaning of the 14th amendment,
crr6 on December 17, 2010 at 10:09 AM

SCOTUS has never said this.

Jenfidel on December 17, 2010 at 10:45 AM

SCOTUS has never said this.

Jenfidel on December 17, 2010 at 10:45 AM

The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment….

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; [n53] in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.

Link.

crr6 on December 17, 2010 at 10:51 AM

They actually passed it under the Commerce Clause. Ironic, isn’t it?

crr6 on December 17, 2010 at 10:09 AM

This was only to put off re-litigating Roe v. Wade until another day and the gargantuan legal issue of abortion as murder itself.

Jenfidel on December 17, 2010 at 10:52 AM

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