House GOP Champions Constitutional Rule

The new Republican leadership in the House of Representatives is championing a new rule: Every new piece of legislation must be accompanied by a statement of the proposal's constitutionality. NPR's Melissa Block talks to University of North Carolina law professor Michael Gerhardt about the idea.

MELISSA BLOCK, host:

As we mentioned, every piece of legislation introduced in the House, in this new session of Congress, will need to spell out precisely where in the Constitution the authority for that bill is found - where in those seven original articles and 27 amendments.

I'm joined by constitutional law professor Michael Gerhardt, who teaches at the University of North Carolina School of Law. Welcome to the program.

Professor MICHAEL GERHARDT (Law, University of North Carolina): Hi, thanks for having me.

BLOCK: Now, professor Gerhardt, what do you make of this new rule requiring members to state specifically where in the Constitution they're getting their authority for their bills?

Prof. GERHARDT: I think the new rule cannot hurt, but I think it's important to understand that members of Congress do take the Constitution into account whenever they consider whether or not to vote for a law, and they also take into account how they draft the law.

I also think the movement toward this rule is based a little bit on a false premise - that is, the expectation or assumption that members of Congress do not take the Constitution into account when they vote on a law. But in fact, they do every single day. And most laws, in fact, expressly reference the Constitution, and it's referenced in debates all the time on the floor of the House.

BLOCK: This new rule, though, says they need to have specific language - a separate sheet, I believe - that's filed with each bill, saying: Here's where, in the Constitution, it says that we can do this. Prof. GERHARDT: I understand. And in fact, most laws have what is called a jurisdictional statement or finding - that reference the specific sections of the Constitution that are the authority of the law. Also, House committees have a requirement that their reports contain the specific constitutional authorizations for the laws that they're considering.

BLOCK: OK. Well, somebody who knows the Constitution as well as you do, which parts do you figure are going to be getting the greatest workout under this new rule?

Prof. GERHARDT: There's no question that the part of the Constitution that will get the greatest workout is the interstate commerce clause. Most federal laws have, as the source of their authority, the specific authority of Congress to regulate interstate commerce among the states.

BLOCK: OK. Well, let's go through some specific legislative examples and start with the health-care overhaul law that was passed last year - which did, in fact, go back to the commerce clause. That's what's been fought about in court already.

Prof. GERHARDT: That is correct. It was part of the debates. It is referenced explicitly in the law. And there's no question at all, among any of the members of Congress, that in voting on it, it was premised, in part, on the interstate commerce clause.

BLOCK: The Lilly Ledbetter Act - this was a fair pay act that was enacted back in 2009. Where in the Constitution would you find the authority for that?

Prof. GERHARDT: That would arise, among other places, from the interstate commerce clause.

BLOCK: Still back in Article 1, Section 8. The Dream Act, this was defeated in December. It would have provided a path to citizenship for some illegal immigrant students. What about that one?

Prof. GERHARDT: Congress has a specific power under Section 8 to establish a uniform rule of naturalization. So that would be the specific authority for that act.

BLOCK: OK. Article 1, Section 8, seems to be you could put some boiler plate on that statement, maybe, and file it with every piece of legislation that's introduced.

Prof. GERHARDT: And that will likely happen. But again, I would emphasize that every member of Congress, every single day that they happen to be there, do take the Constitution into account. I don't think any member of Congress will ever vote for a law that he or she thinks is unconstitutional. In fact, I know they would not.

BLOCK: There is also some pretty broad language at the end of Section 8, talking about Congress being able to make all laws which shall be necessary and proper for carrying out its powers. Could you use that pretty broadly, do you think?

Prof. GERHARDT: You can, but that is generally understood not to be the source of an independent authority for Congress to enact a law but, in fact, that authority exists to be used in conjunction with other authorities - such as the interstate commerce clause - to enact a law.

BLOCK: Can you think, professor Gerhardt, of legislation that's been either introduced or maybe passed that really, you wouldn't be able to specifically find a grounding for somewhere in the Constitution?

Prof. GERHARDT: I think the short answer to that question is no. Laws, once they're enacted, have to go through a large number of what we call veto gates. That is to say, once a law gets enacted, it generally means that there's been a great deal of deliberation over it, and a great deal of opportunity for people to consider the source of constitutional authority for that law.

BLOCK: Plenty of laws, though, that are found unconstitutional later by the courts.

Prof. GERHARDT: That is right. But it doesn't mean that Congress was acting in bad faith when it passed the law. It meant that the courts came up with a different interpretation of the authority of Congress. And I think that's a big part of what's going on right now. Part of what is driving this current movement, on the part of the Republicans, has to do less with fidelity to the Constitution but rather with, how do people interpret the document?

BLOCK: In other words, the old argument over whether the Constitution should be interpreted as through the original intent of the framers, or as a document whose meaning evolves over time.

Prof. GERHARDT: That is correct. But of course, there are other ways to think about the debate as well. To what extent do we care about precedent? To what extent do we care about historical practices? To what extent do we care about the consequences of the law's enactment with respect to the Constitution? There are a lot of different considerations that one has to, in fact, care about when one considers the constitutionality of a law.

BLOCK: Well, Professor Gerhardt, thank you very much for talking with us.

Prof. GERHARDT: Thank you for having me. It's a great pleasure.

BLOCK: Michael Gerhardt is a professor of constitutional law at the University of North Carolina.

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