It seems that tea party antiregulatory logic — i.e., red tape can’t make you think — doesn’t apply to Congress. Per Politico, the Republican Party plans to introduce, as the first two parts of their “platform,” bills that would ask congresspersons to read bills before passing them, and name — and debate — the constitutional source of lawmaking authority in every bill. These are both fairly silly ideas. But we should probably embrace them both.
The first is definitionally useless — nonbinding resolutions for all!!! — but also harmless, and a potential source of comedy. How many Republicans do we expect actually read the bills they distort beyond recognition? Based on how long it took Sarah Palin to cite an actual statutory section in support of her “death panels” lie, probably zero.
The second is largely redundant. Congressional practice has been, since U.S v. Lopez and U.S. v. Morrison, to include a jurisdictional “hook” in every controversial exercise of Commerce Clause authority. The Patient Protection & Affordable Care Act of 2010 placed its “hook,” reciting commerce-related findings and Supreme Court authority, at § 1501 (pdf). As Republican representatives would know… if they had read the bill. See what I mean? And these sorts of exercises are normally useless they require a conspicuous declaration of objective facts. For example, based on my experience writing them, New York legislators treat the state’s “fiscal note” requirement deadly seriously. Since this plan would simply require advocacy, it doesn’t meet that threshold.
Nevertheless, the idea acquires merit for its ability to force productive debate. Throughout the GOP’s fascinating journey of constitutional discovery, we’ve never heard a legal argument based on anything more than rhetoric. Conservative spokespersons seem to think of the document as some barrier against the subjectively shocking, rather than anything with meaningful objective limits. Cuccinelli’s sloppy briefing in his healthcare lawsuit is not to the contrary.
That’s not how constitutionalism works, but it’s a hard problem to force into public view, when the only clash occurs on Sunday morning talk shows, or between noted constitutional scholars like Sean Hannity, and random, pre-screened “liberals.” If, by operation of John Boehner’s pet law, Republicans could suddenly be called, in open session, to defend their understanding of constitutional law, these destructive memes could theoretically be nipped in the bud. As in many cases, more speech is the solution.