House GOP may require constitutional test for all new legislation

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.