U.S. Treasury Secretary Timothy Geithner holds up a copy of the U.S. Constitution… (JONATHAN ERNST/REUTERS )
In honor of Constitution Day we pose the question: Which part of the Constitution governs the use of laser pointers?
It sounds like a dumb question, since the Constitution predated the laser by 171 years. But this year, the House of Representatives declared it had found an answer: Article I, Section 8, Clause 3.
That clause says Congress has the power “To regulate Commerce ... among the several States.” Which, of course, doesn’t say anything about lasers. But the House still used those words to justify a bill that prohibited pointing lasers at aircraft: The logic was that they were acting to protect “commerce.”
This legal loop-de-loop is the result of a new rule in the House, where Republican leaders require every bill to carry a “Constitutional Authority Statement.” The idea was to demonstrate that a new GOP majority respected the enduring restraints of the Constitution.
Instead, this Congress has often demonstrated something else: an ongoing tendency to make the Constitution say whatever they want it to.
Over nine months, the House has passed laws about a variety of modern issues that the Founders didn’t mention — abortion, charter schools and lasers. For authority, they have often turned to broad clauses about “commerce,” the “general welfare,” and the need for “necessary and proper” laws.
That’s not necessarily wrong. But — as the country observes Constitution Day Saturday — it has left some conservatives wondering if their message has sunk in.“They’re generally pretty loosey-goosey,” said Matthew Spalding, a scholar at the conservative Heritage Foundation. “I’ve not seen any evidence yet that it’s really causing the average lawmaker to spend any time thinking about Constitutional limitations.”
Republicans promised to make this change before last fall’s elections, in the party’s “Pledge to America.” Their message was tailored especially to tea party groups, who felt the health care law had expanded federal power far beyond what the Founders intended.
“For too long,” the GOP said, “Congress has ignored the proper limits imposed by the Constitution on the federal government.”
So, when they took over the House, Republicans imposed a new rule: Each bill would carry a “statement citing as specifically as practicable the power or powers granted to Congress in the Constitution” to enact it. The Democrat-held Senate has no such rule.
Nine months later, Republican leaders say the policy is not perfect, but it has done something valuable: require legislators to constantly check themselves against the Constitution.
“I think it’s a useful exercise — it is a reminder of the importance of our most important document,” said Rep. Greg Walden (R-Ore.), a top ally of Boehner’s.
Has the new rule actually altered the substance of bills, to make them consistent with a limited-government philosophy? “Probably,” Walden said. “But I can’t point to any specific examples.”
Still, a review of the 98 bills with “authority statements” that have passed by the House this year shows a complicated picture.
Some bills — especially those introduced at the beginning of the year — contain detailed Constitutional justifications. H.R. 2, a bill to repeal the health care law, cited Articles 1, 2, 3, and 6, the 10th Amendment, and added a quote from James Madison for good measure.
But, in other cases, the House approved bills whose “authority statements” were scanty, and reliant on the same sweeping clauses that conservatives had bashed liberals for using in the past.
H.R. 525, for instance, expanded federal aid programs aimed at public health workers: under the new rule, veterinarians would also be eligible.
The Constitution, of course, says nothing about veterinarians. But the bill’s sponsor, Rep. Tammy Baldwin (D-Wis.) still found a justification: She cited the clause about “commerce,” and another one that lets Congress make all laws “necessary and proper” to carry out its responsibilities.
How did Baldwin decide that was enough? A spokeswoman declined to comment: “Congresswoman Baldwin is focusing on creating jobs and strengthening the middle class.”
In H.R. 2218, which passed this week, the House altered an existing program that provides grants to charter schools. Charter schools — indeed, any kind of schools — are not mentioned in the Constitution.
So where did the House get the authority to regulate them now? Rep. Duncan Hunter (R-Calif.), the bill’s sponsor, cited Article I, Section 8.
“Well, that’s everything,” said Akhil Reed Amar, an expert on the Constitution at Yale University. Section 8 is a long list of everything Congress is allowed to do.“So that’s not specific.”
A spokesman for Hunter defended the citation, saying that Hunter had relied particularly on the part of that section that allows Congress to make rules providing for “the general welfare.”