Tuesday, January 04, 2011

A Friendly Amendment to the Proposed House Constitutional Authority Rule

By Mike Dorf

Under a proposed new rule for the House of Representatives:
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
A December 17, 2010 memo from the new Republican House leadership explains how the rule would work and its purpose.  Although inspired by the Tea Party movement and its reactionary views of the Constitution, I think that the rule is a good idea--and would be even better with the friendly amendment I offer below.

To my mind, the most important aspect of the rule would be the fact that it reminds members of Congress that they, no less than the courts, have a duty to consider the constitutionality of legislation.  In a short Q&A section, the memo includes the following:

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.  

Now that analysis isn't perfect.  Although CJ John Marshall also invoked the oath as part of his argument for judicial review in Marbury v. Madison, it's a bit of a non sequitur.  There are plenty of circumstances in which an oath to uphold the Constitution does not give rise to a responsibility to make independent judgments about constitutionality.  For example, members of the armed forces take an oath to uphold the Constitution, but we do not expect battlefield personnel to decide whether to follow an order from a commanding officer by first resolving for themselves whether the underlying war was constitutionally authorized.  (We do hold military personnel responsible for following orders to commit war crimes, but there too, we do not authorize each member of the armed forces to decide that some act would be a war crime when the courts have ruled otherwise.)

That said, members of Congress are different from members of the military.  As the nation's legislators, they should be thought to have a duty to make independent judgments about a bill's constitutionality before voting for it.  Indeed, whole swaths of judicial doctrine according legislation a presumption of constitutionality are premised on the idea that Congress considered a bill's constitutionality before voting for it.  The proposed rule change would thus remind Congress of a duty that the courts already assume Congress to be discharging.

In that spirit, I think that the House can do somewhat better than the currently proposed rule by expanding its domain.  A bill may be unconstitutional because it goes beyond the scope of the enumerated powers, but it can offend the Constitution in other ways as well.  Most significantly, it can violate individual rights.  A conscientious member of Congress has a responsibility to vote against a bill that would be unconstitutional on any ground.  Thus, I would offer a friendly amendment to the proposed rule--requiring a bill's sponsor to state not only what enumerated power or powers Congress would be exercising but also briefly explaining why the bill would not violate individual rights or other constitutional provisions that might plausibly be invoked against it.

To be sure, many rights violations arise only in an "as applied" context--that is, some law is generally constitutional but is unconstitutional in particular circumstances.  If those are the only sorts of rights-based objections that might be anticipated being raised against a bill, then its sponsors can say as much.  However, there are also circumstances in which Congress passes bills which obviously raise constitutional rights issues that go to the bill as a whole (or, as the courts sometimes say, "on its face").  Relatively recent Supreme Court cases involving campaign finance regulation, pornography on the internet, depictions of animal cruelty, so-called partial-birth abortion, and the availability of habeas corpus for Guantanamo Bay detainees, all arose out of laws as to which mere inspection of the text would have led any prudent member of Congress to anticipate a challenge sounding in constitutional rights.  A brief statement from the sponsors of such bills addressing the anticipated rights objection would help the House satisfy its responsibility to take constitutional rights seriously, just as the proposed rule should help the House to take seriously its responsibility with respect to constitutional powers.


michael a. livingston said...

This is something like England, where Parliament is supposed to consider the constitutional status of its own legislation. But doesn't it imply some skepticism about judicial review?

Michael C. Dorf said...

The notion that legislators have a duty to make independent assessments of the constitutionality of legislation has long co-existed with the idea that courts will also make their own such judgments. This view--which Larry Kramer calls "departmentalism"--is pretty clearly the view of Marshall in Marbury itself (despite the Supreme Court's much later mischaracterization of Marbury in Cooper v. Aaron, which was understandable given the historical context of 1958 Little Rock). Believers in robust judicial review have long championed a strong role for Congress to make its own judgments as well. Prominent examples in the academic literature include Paul Brest, Larry Sager, Robert Post, and Reva Siegel. So yes, there is skepticism of judicial review as a panacea, but no necessary skepticism of judicial review as an important piece of the constitutional system.

Doug said...

I'm not sure why soldiers (and generals) don't have an independent duty of constitutional analysis - I think they do but it's just more limited. That is to say that they shouldn't follow a president's orders (or other's orders) to take over the government extra-constitutionally.

This is in itself a constitutional judgement; an order to implement measures in the wake of a major disaster (e.g. nuclear war) or constitutional crisis could be in legal grey areas but still of a constitutional, democratic character or they could be an attempt to seize power - the generals would need to decide and act accordingly.