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.