Sunday, November 23rd, 2014

Checking on the GOP's constitutional promise

The new Republican majority in the House promised to require a constitutional justification for all bills in the chamber. We checked to see how well it's going.
The new Republican majority in the House promised to require a constitutional justification for all bills in the chamber. We checked to see how well it's going.

During the 2010 campaign, many Republicans pledged their loyalty to the U.S. Constitution and said that President Barack Obama and the Democrats had strayed too far from the vision of the Founding Fathers.

Tea Party Express chair Amy Kremer called the Constitution "our armor. And that is what enables us to stand up here and fight for what we believe in." Mike Lee, a Utah Republican who ousted a sitting GOP senator, declared, "I hereby pledge to you that I will not vote for a single bill I can't justify by the text and original understanding of the Constitution."

Other Republicans made the same promise, and it became part of the GOP platform. House party leaders said they would require that all bills "include a clause citing the specific constitutional authority upon which the bill is justified."

After the election, they quickly took action to fulfill the promise. They scheduled seminars in December 2010 to teach congressional aides how to submit the constitutional justifications with new bills. Then, in January, the House Republicans adopted a rule requiring it for all bills.

We had rated the promise In the Works based on the training sessions. At the request of several readers, we've examined the Republicans' actions since then and are updating our rating. We find the Republicans' have fulfilled the promise, although it's worth noting that experts say the requirement to include a constitutional justification is not particularly meaningful.

What's been done?

The constitutional justification does not appear in the actual text of a bill, but it can be found in the Congressional Record after a bill has been introduced. The way the rule is written, no bill can be considered unless it includes a justification.

If a bill does not contain a statement citing the constitutional authority, the clerk's office sends it back to the sponsoring member's office with a request to add the citation. A spokeswoman for the House Administration Committee said she did not know how many, if any, bills had been sent to the clerk's office without citations.

According to the website for the House Rules Committee, the House clerk only acts to verify that each bill has a justification, not to judge the adequacy of the justification itself. "The adequacy and accuracy of the citation of constitutional authority is a matter for debate in the committees and in the House. Ultimately, the House will express its opinion on a proposed bill, including its constitutionality, by either approving or disapproving the bill."

To check on the promise, PolitiFact staffers examined dozens of constitutional justifications. We found that the statements vary in content, largely because Republican leaders did not specify a standardized format when they enacted the rule.

Some are brief, such as the rationale of Rep. Steve Cohen, D-Tenn., for H.R. 666, a bill that would provide states with funding to update their systems for producing birth and death certificates and reporting on fetal deaths. Cohen simply wrote that "Congress has the power to enact this legislation pursuant to the following: Article I, Section 8, Clauses 1, 3, and 18 of the Constitution."

Others provide more detail, such as the statement by Rep. Walter Jones, R-N.C., for H.R. 24, which proposes that the Department of the Navy be renamed the Department of the Navy and Marine Corps. Jones wrote that "the constitutional authority of Congress to enact this legislation is provided by Article 1, section 8 of the United States Constitution (clauses 12, 13, 14, and 16), which grants Congress the power to raise and support an Army; to provide and maintain a Navy; to make rules for the government and regulation of the land and naval forces; and to provide for organizing, arming, and disciplining the militia."

Controversy over the health care repeal

The most controversial justifications have been for efforts to repeal portions of President Barack Obama's health care bill.

In one case -- seized upon by liberal activists who said it showed the GOP was ignoring its own rule -- Rep. Joseph Pitts, R-Pa., declined to cite specific constitutional sections on behalf of H.R. 358, the Protect Life Act. Instead he justified his act -- which would amend the health care law to prevent federal payment to health plans that include abortion coverage -- by arguing that the provision of the health care reform bill it seeks to overturn is unconstitutional.

Pitts wrote in his constitutional-authority statement that, "Congress has the power to enact this legislation pursuant to the following: The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act."

The statement passed muster with the clerk's office, said Andrew Wimer, Pitts' communications director.

In another health-care repeal bill, Rep. Tom Price, R-Ga., wrote that "Congress has the power to enact (H.R. 969) pursuant to the following: Current law has created an unconstitutional regulatory structure over the health care system. In order to make this system more compatible with a proper Constitutional structure, this bill will ensure that there is less regulation impeding the doctor-patient relationship."

Rep. Anthony Weiner, D-N.Y., objected to Pitts' bill during a Feb. 11, 2011, hearing by the Energy and Commerce Committee, arguing that Pitts' statement doesn't point to a specific article, section or clause of the Constitution.

"I think we should follow the rules," Weiner said in the hearing. "I think we should always be thinking about the constitutional underpinnings of what we do."

Reps. Henry Waxman and Frank Pallone Jr. followed Weiner's point of order with a letter to Rep. Fred Upton, R-Mich., the committee chairman. They asked that H.R. 358 not be considered but that Pitts introduce a new bill with a valid statement on Congress' constitutional authority to pass the legislation denying federal funds for abortion.

Pitts has no plans to change the constitutional justification he included for the bill, Wimer said.

After talking with House officials and examining many of the justifications, we find the Republicans have fulfilled the promise. The Pitts bill is unusual, but we find it's reasonable that a bill based on the premise that a law is unconstitutional essentially contains a de facto justification.

What it all means

So Republicans and Democrats are following the new rule. But has there been any impact on how the House operates? Experts in congressional procedure say the impact is only symbolic.

They agreed that the Republicans have kept their promise, even in judgment-call cases like Pitts' justification. But the experts added that they didn't think statements like these are especially meaningful, since the justifications -- like many arguments about the Constitution itself -- are matters of interpretation.

"Frankly, this is just symbolic, so I have no real feelings one way or the other," said Norman Ornstein, a congressional scholar at the conservative American Enterprise Institute. "Of course, you could offer a bill that repeals the Internal Revenue Code, or Medicare, by claiming it is unconstitutional as your basis, and be utterly wrong. But what difference does it really make? You can also justify almost any bill you want by claiming a broad constitutional authority under the health and welfare clause or the commerce clause. So I see the disagreements here as being just as symbolic as the promise in the first place."

David W. Rohde, a Duke University political scientist, added, "If you had a category for Promise Kept But Utterly Trivial, it would fit."

We won't create the new category Rohde suggests, but we do think that, whatever the promise's larger value, the Republican majority has stuck to its word and presided over widespread adoption of this practice. So we rate it a Promise Kept.