New Constitutional Authority Requirement for Legislation -- You Can't Make This Sh$% Up!

TO: Members of the 112th Congress Committee Staff Directors and Counsels; Member Staff

FR: Speaker-Designate Boehner, Majority Leader-Elect Eric Cantor, Rules Committee Chairman-Elect David Dreier, Transition Team Chairman Greg Walden

DT: December 17, 2010 

RE: New Constitutional Authority Requirement for Legislation

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. 

Our staff will also hold bipartisan briefings for your staff to assist in compliance with this new requirement.

INITIAL STAFF BRIEFINGS

1:00 PM, Monday, December 20, 2010 in HVC-215 1:00 PM, Tuesday, December 21, 2010 in HVC-215

Additional briefings will be scheduled for January 3rd and 4th, 2011.

TEXT OF THE PROPOSED RULES CHANGE:

The new rule will be a new paragraph of clause 7 of rule XII:

"(c) A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution. The statement shall appear in a portion of the Record designated for that purpose and be made publicly available in electronic form by the Clerk.”

COMPLIANCE WITH THE PROPOSED RULE:

When a Member presents a bill or joint resolution for introduction and referral (when it is dropped in the “hopper”), the bill must be accompanied by a separate sheet of paper citing the constitutional authority to enact the proposed bill or joint resolution. Below is the suggested format for the citation:

___________ Member Signature:____________________

(Bill Number)

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 7 of Rule XII of the Rules of the House of Representatives, the following statement is submitted regarding the specific powers granted to Congress in the Constitution to enact the accompanying bill or joint resolution.

_________________________________________________________________________________________________________________________________________________.

The blanks are to be filled in by the sponsor. Below are five illustrative examples of citations of constitutional authority:

The constitutional authority on which this bill rests is the power of Congress to make rules for the government and regulation of the land and naval forces, as enumerated in Article I, Section 8, Clause 14 of the United States Constitution.

This bill is enacted pursuant to Section 2 of Amendment XV of the United States Constitution.

This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 3 of the United States Constitution.

The Congress enacts this bill pursuant to Clause 1 of Section 8 of Article I of the United States Constitution and Amendment XVI of the United States Constitution.

This bill makes specific changes to existing law in a manner that returns power to the States and to the people, in accordance with Amendment X of the United States Constitution.

It is important to note that the sample citations above are merely examples. Further, the citation to accompany a bill is not limited to one sentence and a sponsor may provide additional explanatory details if they wish.

DETERMINING A BILL’S CONSTITUTIONAL AUTHORITY:

While the Office of the Legislative Counsel will assist Members by providing a properly formatted Constitutional Authority Statement form, it is the responsibility of the bill sponsor to determine what authorities they wish to cite and to provide that information to the Legislative Counsel staff.

In addition to the Constitution itself, there are a variety of resources available to Members and staff to assist them in identifying the power granted to Congress by the Constitution to enact a proposed bill. These include:

The Federalist Papers, written mostly by James Madison and Alexander Hamilton to explain the purpose of the Constitution, are considered by many to be the primary source of authority on what the Constitution was understood to mean when it was ratified. There are various editions of the Federalist Papers that provide useful commentary, including the Clinton Rossiter edition, which contains a useful copy of the Constitution with page references to the Federalist Papers that discuss those parts of the Constitution in the margins. The Federalist Papers are also available online at http://thomas.loc.gov/home/histdox/fedpapers.html

The Congressional Research Service’s “Annotated Guide to the Constitution” includes an outline format that allows users to select main topics, then scale down to more narrow subjects within the Constitution and relevant Supreme Court decisions. For House Members and staff, this information may be accessed through CRS’s website: http://www.crs.gov/analysis/Pages/constitutionannotated.aspx 

The Heritage Foundation has a variety of resources available for Members and staff, including the Heritage Guide to the Constitution, which provides a clause-by-clause analysis along with relevant court cases that is written for lawyers and non-lawyers alike. For more information visit: www.heritage.org.

The Founder’s Constitution is an on-line version of a five-volume work first published in 1986 that includes a range of documents that help explain and place into context the specific provisions of the Constitution. Information is arranged by article, section, and clause of the U.S. Constitution, from the Preamble through Article Seven and continuing through the first twelve Amendments. It is available at: http://press- pubs.uchicago.edu/founders/

There are a number of think-tanks and associations from across the political spectrum that provide research and commentary on constitutional issues, including:

The Brookings Institution: http://www.brookings.edu/topics/u-s-constitutional- issues.aspx

CATO Institute: http://www.cato.org/constitutional-studies 

The Federalist Society: http://www.fed-soc.org/ 

The American Constitution Society: http://home.acslaw.org/

The adequacy and accuracy of the citation of constitutional authority is matter for debate in the committee and in the House. The rule simply requires that the bill be accompanied by a constitutional authority statement upon introduction. The statement will be publicly available through the Congressional Record and will be available with other relevant bill information, such as a list of cosponsors, on the Thomas website.

FREQUENTLY ASKED QUESTIONS:

Q. What if a sponsor declines to attach a Constitutional Authority Statement when introducing a bill?

A. Under the rule, the clerk will not accept the bill and it will be returned to the sponsor. This is the same process used to enforce clause 5 of Rule XII, which since 1995 has prohibited the introduction of bills or resolutions which seek to designate a specific period of time (such as a day, week, or month) for a particular commemoration.

Q. Does this rule apply to the introduction of all bills and joint resolutions, such as bills that merely make technical corrections to current law or proposed constitutional amendments?

A. Yes, the rule applies to all bills and joint resolutions. In these instances, a sponsor may in their Constitutional Authority Statement wish to refer back to the power granted to Congress to enact the statute they are proposing to amend or the powers under Article V to propose constitutional amendments.

Q. Isn’t it the courts’ duty to determine whether a law is constitutional and thus doesn’t this rule infringe on the power of the courts?

A. No. While the courts have the power to overturn an Act of Congress on the basis that it is unconstitutional, Members of Congress have a responsibility, as clearly indicated by the oath of office each Members takes, to adhere to the Constitution.

Q. What impact will the Constitutional Authority Statement have on litigation regarding the constitutionality of Acts of Congress?

A. To the extent that a court looks at the legislative history of an Act, the Constitutional Authority Statement would be part of that history. However, the courts have made clear that they will not uphold an unconstitutional law simply on the basis that Congress thinks that the law is constitutional.

Q. What if the citation of constitutional authority is inadequate or wrong?

A. As stated earlier, the adequacy and accuracy of the citation of constitutional authority is a matter for debate in the committees and in the House. Ultimately, the House will express its opinion on a proposed bill, including its constitutionality, by either approving or disapproving the bill.

Q. So why have this Rule at all?

A. Just as a cost estimate from the Congressional Budget Office informs the debate on a proposed bill, a statement outlining the power under the Constitution that Congress has to enact a proposed bill will inform and provide the basis for debate. It also demonstrates to the American people that we in Congress understand that we have an obligation under our founding document to stay within the role established therein for the legislative branch.

The Heartbreak of Premature Capitulation

Wednesday 08 December 2010

by: Michael Winship, t r u t h o u t | Op-Ed

There's this old joke about the French Revolution. A group of prisoners is lined up before the guillotine. One by one, their heads are lopped off. Then, the next man is put in place. The lever is pulled, but the blade stops just inches above his neck. This must be a sign of divine intervention, the judge in charge declares, and the man is freed. The same thing happens to the next prisoner and the next and the next. Finally, as the very last man is prepared for execution, he looks up at the mechanism and exclaims, "Wait! I think I see your problem!"

Ladies and gentlemen, I give you President Barack Obama, providing needless aid and comfort to those who would do him wrong, handing over his own head without a fight, afflicted with a curious syndrome we men of science have decided to call Premature Capitulation.

Backing away from myriad campaign promises, giving in to health care, economic stimulus and financial reform compromises - in some ways, these were par for the course, the unfortunate price of governing and politics in a polarized America. But in the few weeks since the midterm elections, the affliction of Premature Capitulation has become more and more endemic, whether it's dissembling on our policy in Afghanistan or backing away from a moratorium on settlement building in the West Bank, announcing a federal workers' wage freeze (which would have been appropriate for the higher ranking civil servants, but is pandering to the right and downright cruel to those government employees who barely make enough on which to live) or the continued kowtow to the moneyed interests who, if they pat him on the back, do so only to find the place to insert their knives.

And now this deal to extend the Bush tax cuts for two years, continuing breaks for the wealthiest Americans, as well as a similar extension of the capital gains top rate - 15 percent - and a raise of the estate tax exemption to $5 million per person, with a maximum rate of 35 percent. In exchange, Obama is supposed to get a 13-month extension of unemployment benefits for the long-term jobless, an expanded earned-income tax credit, equipment purchase write-offs for businesses, a reduction in the Social Security payroll tax and continuation of the college tuition tax credit.

Not so bad, you may think; in fact, many are viewing what Obama has gotten as a de facto second stimulus, but chances are Republicans would have yielded to public pressure on unemployment, especially during the holiday season, and as James Kwak points out on The Baseline Scenario web site (which he founded with economist Simon Johnson), "The Bush tax cuts were always bad policy. After the last election, President Obama will be able to accomplish precious little. But he could easily have killed the Bush tax cuts and thereby done more good for our nation's fiscal situation than anyone will be in a position to do for many years to come. Killing the tax cuts would alone reduce the national debt by roughly as much as the deficit commission's entire proposal. And killing the tax cuts was the path of least resistance. Obama could have done it by doing nothing. Or he could have done it by taking a strong negotiating position and being willing to walk away from the table ...

"Instead we got a two-year extension as part of an overall package that adds $900 billion to the debt ... And Obama will no longer be able to say the tax cuts were a mistake made by President Bush that he was letting expire. Now he owns the mistake."

What's more, while the president's brief announcement of the deal Monday night was matter of fact, the press conference on Tuesday - calling out progressives as sanctimonious purists - was a defensive display of petulance more appropriate to the sandbox than the White House.

Mr. President, up to now at least, progressives have been the loyal opposition. You're wasting ammo on the wrong guys. Stand up, aim in the right direction and fight. Because if you think the tax breaks will lead to further logrolling or concessions from Congressional Republicans you're wrong. Now that they've gotten what they want, for the next two years of your term they will not yield much of anything else. Their nihilistic, scorched earth brand of politics leaves nothing behind but ash.

And so this latest compromise may prove a Pyrrhic victory. Or is that being premature?

Is It the Last Straw for Obama?

I have defended the President for almost two years.  When health care reform was watered down to the point where it ended up as a minor tweak in health care insurance, I opined that Obama took what he could get and planned to build on it in the future. 

When the President bailed out the banks, I agreed that they were “too big to fail.”  It was a response to problems begun during the Bush era.  Without the bailout, we would have been plunged into worldwide economic chaos.

The President heralded his “stimulus package” as a jumpstart for the barely breathing economy.  Unfortunately, it didn’t include enough money and wasn’t allowed to last long enough to create the type of head of household jobs necessary to help what used to be working folks up and off welfare or food stamps.  I told those exasperated with the President that it was due to the recalcitrance of Republicans and so-called “centrist” Democrats. 

Just before the midterm election slaughter, the House Democratic Leadership was so weak that it chose to withhold tax cuts for working families and the abolition of the Bush-era tax cuts for millionaires and billionaires based solely on the mere threat of a filibuster in the Senate.  I pointed to Nancy Pelosi, not at my President.

When the lame-duck session of Congress convened and there was no urgency to put the working class tax cuts to a vote, I was puzzled.  A few weeks ago, when a staff member in the Administration suggested that the virtual tax amnesty for the wealthiest Americans might be extended in order to achieve the tax cuts for those who make $250,000 or less, I was incredulous.

Voters had deservedly blamed the Democrats for four years of inaction and kicked them out of the leadership.  Here was (and still is) an opportunity to show the vast majority of all Americans, not just Democrats, that we are the Party of the people.  As Abraham Lincoln said and Obama repeated, “government should do for the people what they cannot do better for themselves.”  Amen. 

A few days ago, it all came crashing down when the President met with Republican leaders at the White House to discuss extending the Bush tax cuts for top taxpayers.  Obama seems ready to give Republicans what they want. 

What has me flabbergasted is that what Republicans want is not what the vast majority of Americans want.  There is no question.  Everyone except the rich and the Republicans (who are generally rich, especially those in Congress) want tax cuts for everyone but the rich.

Both economics and politics side with tax cuts for the middle class and against those for the wealthy.  Heck, taxpayers in the top 1% percent of income are not even going to miss a few hundred thousand dollars.  They currently obtain almost 25% of all national income, the highest since just before the Great Depression (insert comment about the irony here).

Rich folks are rich because they don’t spend a lot of money.  Therefore, the Republicans can’t argue that by keeping the tax cuts, they are stimulating the economy.  Top earners save more income than the middle class does by far, and they obviously have a heck of a lot more left over.  The rich have never stimulated the economy for others.  They have stimulated it for themselves and kept it for themselves.

You know how the Republicans are moaning about the budget?  Well, tax cuts for the rich will cost $61 billion in 2011.  Just 2011.  Got hypocrisy?

The President was elected by regular folks.  If he backs down on the Bush tax cuts, how does he explain it to working and middle class families still upside down because of the Great Recession?  All it achieves is allow the Republicans to do another favor for those who helped create this lousy economy but are wealthy enough not to feel it.

I don’t agree with Robert Reich much. He served under Clinton and like many who did, turned on Bill after jumping ship.  However, I must admit when he has a good idea.  Allow me to quote.

“The only compromise [the President] should be prepared to make is to extend the Bush tax cuts to the bottom 99 percent (rather than the bottom 98 percent), and for two years rather than ten. The top 1 percent begins at around $500,000 rather than $250,000. 

This would allow the President to even more sharply illustrate the extraordinary concentration of income at the top, while robbing Republicans of their debating point about small business (just about all small business owners with payrolls earn under $500,000).”

Mr. President, don’t do a deal for the sake of getting something done.  Whatever is achieved by such a Faustian bargain will not be worth losing those like me who have been defending you for what seems a long, long time.

Barack Obama: President, not King

Note: I've been meaning to write this, but Kevin Drum beat me to it.  

— By Kevin Drum

| Thu Dec. 2, 2010 8:59 AM PST

Email from a moderate lefty friend:

We crossed the Tipping Point yesterday. Last night L told me she's "over" Obama and thinks he's in over his head, politically. Up until yesterday, she was a die-hard supporter/defender. I'm nearly there.

I don't think he or his advisors have any idea how fast his supporters are fleeing. It reminds me — painfully — of Carter, circa 1979. Obama's about one "killer rabbit" away from certain defeat by any Republican, including Palin.

Easy solution: eliminate middle class payroll taxes and/or reduce tax rate on first $250K to as close to zero as possible and tax everything north of that at 40%, including dividends and capital gains.

Apropos of last night's post, I told him to wait until January to see what Obama is really made of. But it reminds me of something else, and I don't remember for sure if I've blogged about this. That's the problem with our modern cornucopia of communications channels. Maybe I tweeted this. Maybe I said it in a talk. Maybe I emailed about it. Or maybe I've already blogged it ten times and just forgotten about it. Who knows?

But anyway, here it is: Obama is a president, not a king. On taxes, for example, his position has been steady and clear all along: extend the broad tax cuts but kill the cuts aimed solely at the rich.

So why hasn't it happened? Because of opposition from within his own party. A tax bill could have been passed by reconciliation in the Senate, but for some reason it wasn't. It could have been passed in the House, but a combination of Blue Dogs and fainthearted centrists afraid of attack ads blocked it. And as much as we all like to pine for the days of LBJ and the "treatment," those days are long gone. It's genuinely not clear what kind of leverage Obama has over recalcitrant members of Congress. Not a lot, in any case.

I figure that Obama probably could have done more, but I'm not absolutely sure of that. What really happened was a failure of the Democratic caucus in Congress. That doesn't make as juicy a target, but it's a more accurate one. In this case, blame the party, not the president.