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GOP Educating Members About New Constitutionality Rule

House Republican leaders this week began educating Members and staff about a new rule that will require lawmakers to defend the constitutionality of every bill they introduce next year.

From the first day of the 112th Congress, each bill or joint resolution must include a clause citing its constitutional authority. On Dec. 17, House Republican leaders sent a memo to Members and staff on the new procedure, saying they were looking to “minimize any disruption caused by its implementation.”

Leaders conducted two separate staff briefings on compliance with the new rule; two additional briefings are planned for Jan. 3 and 4. The new Congress convenes on Jan. 5.

The new rule grew out of the GOP’s “Pledge to America” governing agenda released this fall. Republicans — and their allies in the tea party movement — have made the articles of the Constitution central to their governing platform.

Republican leaders wrote in last week’s memo that the new rule will “further inform the debate.”

“It also demonstrates to the American people that we in Congress understand that we have an obligation under our founding document to stay within the role established therein for the legislative branch,” the memo said.

The new provision replaces the “Constitutional authority” clause that was implemented in the 105th Congress, which required committees to include the specific powers “granted to the Congress by the Constitution” in their reports.

In order to fully comply with the new rule, Members provide proof of a bill’s constitutionality on a separate sheet of paper. If a lawmaker chooses not to attach the statement, the Clerk of the House will reject the bill and return it to the sponsor, according to the memo.

Leaders recommended Members seek out a number of sources for guidance.

“In addition to the Constitution itself, there are a variety of resources available to Members and staff to assist them in identifying the power granted to Congress by the Constitution to enact a proposed bill,” the memo said, noting additional information could be found in the Federalist Papers and the Congressional Research Service’s “Annotated Guide to the Constitution,” as well as documents provided by think tanks such as the Heritage Foundation, the Brookings Institution and the Cato Institute.

Don Wolfensberger, director of the Congress Project and a Roll Call contributor, said the rule does not pose any “practical problem” aside from “additional work for the clerical staff to make sure things are kept straight in the process.”

Rep. Scott Garrett (R-N.J.), founder and chairman of the House Constitution Caucus, recently introduced legislation that would, among other things, bar Members from simply citing the “general welfare” or “necessary and proper” clauses in the Constitution. He said the new rule will only be taken seriously if enforced.

“It is a gimmick if it has no teeth to it, if you do it right then it compels Congress to actually have that debate on constitutionality,” he said

Some Democrats questioned the need for the new requirement.

“Why?” asked Rep. Jim McGovern (D-Mass.), a Rules Committee member. “It sounds like a lot of extra work and extra documentation to deal with a problem that doesn’t really exist.”

McGovern said the question of constitutionality is usually left to the Supreme Court, and legislative counsels usually alert Members if a bill violates a part of the Constitution.

“People around here do pay attention to the Constitution and do act within the Constitution and have great admiration and respect for the Constitution,” he said. “It sounds like what they’re doing is a gimmick and you know, that’s fine. They are going to be in charge and can do all the gimmicks they want.”

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