The Coming Constitutional Debate

Matthew Spalding /

The Constitution has returned to Congress. It began with a ceremonial reading of the document on the House floor for the first time in US history. While the event had some problems, the act of reading the document that provides the authority for Congress in the first place sets the tone and defines the core purpose of the new Congress: to restore constitutional limits on the federal government.

The real test comes with the debates over the new House rule requiring that each piece of legislation cite its constitutional authority. “A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution,” reads Rule XII. Objections over a particular constitutional citation will be subject to debate.  And the first good fight will be over the repeal of Obamacare.

On the first day of the session, Rep. Eric Cantor (R-VA) submitted the Constitutional Authority Statement for H.R. 2, “Repealing the Job Killing Health Care Law Act,” referring to the Patient Protection and Affordable Care Act, better known as Obamacare. The statement for repeal asserts Congress’s independent responsibility to uphold and interpret the Constitution, not only challenging the court’s claim of exclusive power over the Constitution but also liberalism’s view of a limitless regulatory state:

For over 200 years, the Congress, the Executive, and the Judiciary have acted according to the principle of coordinate branch construction based on their respective obligations to ensure that all their actions are constitutional. This is the clear meaning of the Vesting Clauses of Articles I, II, and III along with the Supremacy Clause of Article VI, as well as of the Oath of Office that each constitutional officer of the Federal government must take pursuant to Article VI. James Madison made this clear in 1834 stating, ‘As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.’

The citation then proceeds to express the opinion of Congress that Obamacare went “beyond the enumerated powers granted to Congress by the Constitution, including, in particular, the Commerce, Taxing, and the Spending Clauses of Article I, Section 8, as well as the Necessary and Proper Clauses contained therein, and that otherwise improperly extend authority to Federal agencies in a manner inconsistent with the Vesting Clause of Article I, Section 1.” That pretty much covers everything.  The last remark is especially interesting, as it makes the point, long ago dropped by the Supreme Court, that there is a constitutional problem when Congress delegates its lawmaking responsibilities to actors outside of the legislative branch.  Raising that issue is a direct challenge to the very legitimacy of the bureaucratic mechanisms of the modern administrative state. The citation also notes that “The general repeal of this legislation is consistent with the powers that are reserved to the States and to the people as expressed in Amendment X to the United States Constitution.”

Constitutional objections to Obamacare have mostly focused on the individual mandate section, which requires Americans to purchase health insurance or face penalties. It establishes a dangerous premise: if Congress may use its coercive power to require the purchase of health insurance, is there anything Congress cannot impose? But the individual mandate is not the most egregious offense against the Constitution.

In passing Obamacare, Congress transferred important aspects of its legislative authority to various administrative agencies. The legislation creates a multitude of federal agencies, and consequently, empowers hoards of unelected, unaccountable bureaucrats to write detailed rules over one-sixth of the economy. This act of transferring such vast rule-making authority to another body (known as the delegation of legislative power) is contrary to the Constitution. As a recent essay in our Constitutional Guidance for Lawmakers series explains, legislative powers are not Congress’s to give away: “The principle of non-delegation is fundamental to the idea of a limited government accountable to the people. The delegated powers are defined as placed in distinct branches of government for the ‘accumulation of all powers, legislative, executive, and judiciary, in the same hands,’ writes James Madison in Federalist No. 47, ‘may justly be pronounced the very definition of tyranny.'”

Supporters of Obamacare respond that the health care legislation is indeed constitutional. The General Welfare Clause, the Necessary and Proper Clause, the Commerce Clause, and the Taxing Power have each been cited as providing the constitutional seal of approval. Although the 111th Congress did not require constitutional support for legislation, Washington Post writer, Ezra Klein commented that “the one bill that did [have constitutional citation was] the health care bill. In the individual mandate section it names the constitutional authority for the mandate.” What was the constitutional citation for Obamacare that Klein highlights? The Supreme Court, of course: “In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.” The problem with Klein’s analysis is that the Supreme Court is not the Constitution.

Starting with the repeal of Obamacare, the House’s rule on constitutional citation marks a new era of debate about constitutional meaning.  This will be an intense fight, and there will be many mistakes and disagreements along the way.  Congress’s constitutional muscles are greatly atrophied, and lawmakers need to relearn how to think constitutionally.  But it could well mark the beginning of a serious and timely restoration of constitutional limits on government, and so the recovery of our liberty.