Monday, August 16, 2010

Show Me The Money, er, The Authority

Still languishing in House Judiciary Committee hell is Rep. John Shadegg's proposed Enumerated Powers Act. Considering the "make it up as we go along" members of Congress from both parties, it's not a big surprise that a proposal to require the inclusion of the constitutional authority for any proposed bill within the body of the bill itself would die aborning.

The picture of the Constitution I chose concentrates on Article I. That's the one that creates Congress, and enumerates (sets forth specifically) the powers of the legislative branch of our Republic. Lest future politicians expand the powers of Congress beyond those intended, the Founders included the Tenth Amendment prior to ratification, which says: "The powers not delegated to the United States (enumerated powers) by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people." In other words, if the Constitution doesn't grant the power, the Congress is forbidden to act.

That's a simplistic statement of the rules of the game, but substantially correct. Correct, even given later developments including the Fourteenth Amendment, which have frequently been used by Congress and the courts to expand the Article I powers beyond recognition and ignore the Tenth Amendment entirely. Still, the bill proposed by Rep. Shadegg (R-Arizona) is not simplistic. If the sponsors can find the authorization and state it briefly or at length, then the public should be able to discern quickly if Congress is exceeding its authority or misstating it.

This concept has been around for years, waxing and waning with the times and the will to power in Congress. The first big round occurred during the early FDR New Deal. In the name of financial crisis, Congress either found or created powers for itself that it had never found before. At first, the Supreme Court found many of those actions unconstitutional. Later courts were not such sticklers for the rule of law or constitutional precedent. Whenever Congress sensed a weakness in the executive or judicial branch, it also sensed a chance to expand its powers. The activist Congress of the 60s had a complicit Supreme Court behind it. The Court makeup changed considerably by the time of George W. Bush, but he misplaced his veto pen, and even a conservative Court is loath to interfere with the joint actions of the two political branches.

The current move by brakeman Shadegg comes after nearly two years of an Obama administration and a liberal Congress passing legislation that has absolutely no established constitutional authority. Shadegg says that the excesses of Congress have gotten alarmingly worse since Obama and the Democrats got a stranglehold on the two political branches of government. The health-care bill was the straw that broke the already-weakened camel's back. When several reporters asked Her Majesty Nancy Pelosi where the Constitution gave Congress the power to force individuals to buy health insurance under pain of fines, tax consequences and perhaps even jail, Pelosi gave the following intellectual response: "Are you serious? Are you serious?" Unfortunately, it's not possible to put into print the shrillness and indignation in Pelosi's voice.

As I said above, Shadegg's bill is not simplistic, but it is simple. It reads in pertinent part as follows: "Requires each Act of Congress to contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. Declares that failure to comply with this requirement shall give rise to a point of order in either chamber of Congress." A point of order can stop a steamroller bill almost as definitively as the more familiar filibuster.

I think this is a great idea. It's thoughtful, it's logical, it's an affirmation of the Founders' plan for limited government, it's easy to understand, it combines common sense with the rule of law, and it restates the purpose for which Congress was created. Therefore, it will have to wait until that Judiciary Committee hell freezes over before it ever becomes law.

18 comments:

Patti said...

from your keyboard to God's eyes!

i had the same thoughts you ("I think this is a great idea. It's thoughtful, it's logical, it's an affirmation of the Founders' plan for limited government, it's easy to understand, it combines common sense with the rule of law, and it restates the purpose for which Congress was created." ) and then realized that if two or more conservatives in the midst of a libbie-run government shall agree then the hoped for law shall have to DIE!

what a shame that common sense is not the rule of the day.

AndrewPrice said...

I really like this idea. Not only does it force them to focus on the Constitution, but it puts them on the spot when everything they try to pass gets wedged into Interstate Commerce. I just hope the Court would look at that and say, "if that's the only authority you think you have, then we aren't looking any further to save your legislation."

Tennessee Jed said...

Hawk - nice post as always. Although I can see power hungry congressmen from both parties trying to duck this one, it could be one more litmus test for congressional candidates. "Do you support Shadegg?" Those that do not and ask for my vote will get a replu something akin to: "are you serious? Are You SERIOUS?"

LL said...

It makes perfect sense - BUT, I suspect that it's doomed for that very reason.

BOTH Republicans and Democrats only trot out the Constitution when it suits them -- which is why we're in the mess that we find ourselves in.

There aren't many on Capitol Hill who will willingly limit their power (even though it's the law of the land).

LawHawkRFD said...

Patti: Common sense is a dead dinosaur among Democrats and a few too many Republicans. Shadegg's proposal is being treated by many in Congress as a "radical" idea. Living within your means and the authority of the Constitution is now considered radical.

LawHawkRFD said...

Andrew: After federal judge Thelton Henderson found portions of California's Civil Rights Initiative invalid, I've come to believe that a federal judge can twist anything into the statist scheme. That decision essentially held that the Constitution was unconstitutional.

LawHawkRFD said...

Tennessee: Just remember to practice attaining the shrillest screech you can possibly reach while asking "are you kidding?" LOL

LawHawkRFD said...

LL: And that's the truly scary part. You have a Democrat like California's Rep. Pete Stark who publicly and proudly proclaims that Congress has the power to do anything it wants. Worst of all, the uninstructed think he's right.

It's time for Americans to remember the warning of Lord Acton: "Power tends to corrupt, and absolute power corrupts absolutely."

AndrewPrice said...

Lawhawk, Isn't that the truth. Still, it's a nice thought that maybe they would actually use this to limit Congress' power!

StanH said...

I love it! These are the kind of things as a country we must reaffirm, whether or not laws pass Constitutional muster is logical, therefore very tough to pass through any statist congress. None the less, it will require bold steps to right the ship of state, and what some people define as “radical,” are exactly what should be done. I know a couple Constitutional amendments that need to be abolished, or modified, call me radical.

LawHawkRFD said...

Andrew: Sadly, it doesn't even create some new limitation on Congress's power, it simply requires that they recognize that the limitation of power already exists and should be adhered to.

LawHawkRFD said...

Stan: I'm pretty sure I know which provisions you're talking about, and if that's right, I agree. But this "authority" bill could be a truly great campaign issue. All polls show that the suspicion of Congress and its attendant low ratings are the result of power overreach. What a great opportunity to reach the American people and accomplish a truly important goal at the same time.

StanH said...

I’ve thought since Barry’s ascension, that a real opportunity has appeared again in my life. Not since Reagan have the lines been so visible between conservatism and liberalism, and things like Shadegg’s proposal are vitally important to delineate the two party’s. The wise man once said, “you don’t turn a battleship in a bathtub,” and this will take time to reverse, and I’m generally hopeful that we can. The trick will be staying involved for several election cycles, and not squander again what the great Reagan left us in ’88.

LawHawkRFD said...

Stan: I should also add that we need to give strong encouragement and lots of attaboys to those legislators who do the right thing. California Governor Schwarzenegger came into office originally as a conservative. One defeat, and he went over to the other side and has been there ever since. Shadegg wouldn't do anything that shocking, but even the best of people can get discouraged when they think they're out there all alone.

Joel Farnham said...

LawHawk,

I like the idea. It might pass a few years from now.

LawHawkRFD said...

Joel: Which fits with what I was saying to Stan. Don't give up, don't despair. If at first you don't succeed, try, try again.

Ed said...

I like the idea, even though I think it won't help.

LawHawkRFD said...

Ed: We can't be sure of anything until we try. And you're right--if the law were passed and implemented, it would require a very attentive citizenry to keep the grounds for authorization honest. It wouldn't do us any good to have a piece of legislation passed with an authorization by Rep. Pete Stark that says: The Constitution authorizes Congress to do anything it damned well pleases." As the truism goes, "the price of freedom is eternal vigilance."

Post a Comment