With any luck, the Supreme Court will soon declare Obamacare unconstitutional. Nevertheless, conservatives think it's not a good idea to rely on the courts to prevent the next congressional overreach from becoming law. House Republicans did their best when they took over in January 2011 in adopting a rule requiring every bill to be justified by a constitutional-authority statement. So far, however, conservative members aren't overly impressed with their colleagues.
The Republican Study Committee (RSC) analyzes the constitutional statements for every bill and joint resolution introduced and sends out a weekly email highlighting the "most questionable." Last week, it selected Rep. Andre Carson, Indiana Democrat, for justifying his bill to authorize the president to award a gold medal on behalf of Congress to boxer Muhammad Ali by citing irrelevant constitutional clauses, including the one giving Congress the right to set its governing rules and expel members.
Rep. Scott Garrett was behind the push to get the GOP to include the constitutional requirement in its rules, but he proposed stronger wording. "It was a good first step - I'm glad we got people in the habit of looking to the Constitution," the New Jersey Republican told The Washington Times. "But they still go pretty far afield and have very loose interpretations. Next year, we should go further to have the effect that everyone wanted it to have."
Lack of knowledge of the Constitution is part of the problem, but so is the enforcement mechanism. The current rule is too vague, saying only that the statement should cite "as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution."
Mr. Garrett and the RSC are pushing for reforms that include requiring citation of the specific enumerated power authorizing a particular congressional action. This would have prevented Rep. Dennis J. Kucinich, Ohio Democrat, from citing the preamble to the Constitution to justify the creation of a Department of Peace. The exact section and clause would have to be cited, stopping Rep. John Conyers, Michigan Democrat, from writing merely that Article 1 gave him the power to introduce a job-training bill in April.
Conservatives want to ban the generic use of the "necessary and proper clause" in Article 1, Section 8, Clause 18 as the automatic sanction for any whim. RSC counted 322 examples citing only that clause in the first year - 140 of which came from Republicans. The alternative is to require members to name precisely which of the "foregoing powers" is being used.
Had then-House Speaker Nancy Pelosi been forced to explain the constitutionality of President Obama's health care law, the public might have seen through the Democratic power grab. It's not too much to ask members to be able to articulate the legitimacy of their actions. Conservatives are right to strengthen the rule after the election. Making lawmakers become more familiar with our nation's founding document is worth the fight.