The House GOP’s New ‘Constitutional Authority’ Rule And The Law Of Unintended Consequences

Late last week, the House GOP leadership circulated a memo announcing their plans to impose a new requirement on all legislation introduced in that body:

The Pledge to America released by House Republicans in September of this year included a commitment to “require every bill to cite its specific Constitutional Authority.” To implement this proposal, the Transition Team and the Elected Republican Leadership are recommending a change to standing Rules of the House to require that each bill or joint resolution introduced in the House be accompanied by a statement citing the specific powers granted to Congress in the Constitution to enact the proposed law.

As this requirement will apply to all bills and joint resolutions introduced in the 112th Congress — including those introduced on the first day — we are writing to provide early guidance for complying with this rule so as to minimize any disruption caused by its implementation.

As ThinkProgress explained when the GOP released its so-called Pledge to America, this proposal is largely a solution in search of a problem. The Constitution gives Congress broad authority to regulate the national economy and to raise and spend revenues, and there is simply no evidence whatsoever that Congress exceeds this authority on all but the most rare occasions. Less than one federal law is struck down every year as unconstitutional, and many of the few laws that are struck down are invalidated because they violate the Constitution’s civil rights protections — such as the right to free speech or to be free from discrimination — and not because they exceed Congress’ enumerated powers.

Yet, while the GOP’s proposal is unlike to address any existing problem, it could also wind up causing serious new ones.

In a questionably-reasoned decision allowing the most high-profile of the health care lawsuits to move forward, Republican Judge Roger Vinson held that the Affordable Care Act’s provision requiring all Americans to either carry health insurance or pay slightly more income taxes somehow does not fall within Congress’ power to levy taxes because Congress did not use the word “tax” to describe the provision in some parts of the bill.

Moreover, the health care litigation provides a warning that established constitutional doctrine may not always be there when Congress needs it. One year ago, the notion that the Affordable Care Act might violate the Constitution was a punchline. Today, the Supreme Court’s precedents are even more favorable to the Act than they were a year ago, and the doctrinal argument against health reform remains laughable. Nevertheless, one federal judge has already declared a portion of the law unconstitutional, and Judge Vinson appears poised to do the same soon. If either of these decisions are upheld by the Supreme Court, the scope of Congress’ power would become impossible to pin down.

So the new landscape is very simple. Congress will be required to name a constitutional provision that supports each law they pass. If Congress fails to mention another provision, Judge Vinson would say that that provision can’t apply — even if it would be sufficient to uphold the law. Moreover, the scope of each of Congress’ powers can change at a moments notice and without warning. So any law could be struck down simply because some Member of Congress makes an unforeseeable error in describing the law’s constitutional basis.

There are many reasons why Judge Vinson’s opinion should be reversed on appeal. The House GOP just came up with another one.