Pass the GOP’s First Two Planks

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.



  1. Actually, I think its more about how Republicans currently view the Constitution, as emboddied by Justice Scalia’s “Originalist” block vs. Justice Breyer’s “Living document block.” To me, the reason that Republicans deabte from rhetoric as opposed to citation is that they seem to view the Constitution as a fixed (temporally and morally) line to which the Nation must cleave. Since it si fixed, there’s no need to demonstrate how or where the constitutional hook exists – most of what is being debated on teh Hill is outside of their interpretation of the Constitution so it’s all worth trashing. Since what passes for liberalism these dyas seems to be in Mr. Justice Breyer’s camp that the Ocnstitution can adapt to new times through de novo interpretation, we get the inevitable “show me where” arguments.

  2. So… you are on-board with this plan then?

  3. Definitely. And, supporting it could become a symbolic coup, for us.

  4. Well let’s think about this at an ideal level for a second. So let’s say all your charges are corect and the GOP has never shown any interest in the things they are asking for in this bill. It will commit them to a terribly inconvienant framework based on their previous actions.

    …and what if they pass and follow it to the letter? I’m not sure that this is a coup for the Left. The GOP could have been throwing babies down elevator shafts on Monday but if they pass a law forbidding it and stick to the law, all will be forgiven by Friday. The American public has a very short memory.

    1. You mean like how a certain President was engaged in warrantless wiretapping on American soil and COngress passed a law retroactivelymaking it legal and immunizing the companies that colluded with the government to do it? Yeah, becaus ethat didn’t cause any harm to the U.S. or anything . . .

      1. I don’t follow your example Phillip. What I was trying to say is that this legislation isn’t likely to be the coup for the Left that Ames would like it to be.

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