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Tempest in the Tea

By Louis R. Evans, Crimson Staff Writer

The Tea Party, the political movement that swept the 2010 midterms, sees itself as more than a political interest group. It has brought a new focus to the question of Constitutional interpretation, by arguing that the Constitution, exists to strongly limit the powers of the federal government. The Tea Party appears to consider the list of powers that Article I, Section 8 grants to Congress as exhaustive and narrowly specific. Modern Constitutional scholarship has understood the commerce clause as a broad grant of power, allowing everything from the detailed financial regulation of the New Deal to the civil rights act. The Tea Party, on the other hand, sees such far-reaching legislation as exceeding Congress’s legitimate power and untrue to the strict letter of the Constitution.

The incoming 112th Congress would appear, at first glance, to share the Tea Party’s sentiments. They opened their session with a reading of the Constitution, to emphasize how the founding document limits congressional power. Furthermore, Republican leadership established a new rule, which requires each bill introduced for consideration to include a “Constitutional Authority Statement.” These passages explain what portion of the Constitution would authorize Congress to pass such a law. Such actions suggest that the 112th Congress shares a strict Constitutional interpretation, one where Congress is limited to its explicitly enumerated powers.

However, a close read of these Constitutional Authority Statements reveals more hypocrisy than anything else. Take, for example, the Constitutional Authority Statements for bills introduced on the first day of the new session. Several of the Authority Statements introduced that day simply referenced Article I, Section 8—the section that grants Congress all of its powers. Others simply referred to the “necessary and proper” clause or “general welfare” clause, two of the most vague grants of legislative power in the constitution. There is little evidence that these Authority statements are anything more than a formality.

But that’s far from the worst of it. The Authority Statements are not simply nugatory. A close read of the Authority Statement for H.R. 2 reveals just how incoherent the strict reading it purports to uphold is.

H.R. 2, the repeal of last year’s historic health care reform was one of the Republican’s top legislative priorities upon retaking congress. Why? Well, as H.R. 2’s authority statement states, the Republican majority believes that the Patient Protection and Affordable Care Act was unconstitutional.

But while Congress has the power to interpret Constitutionality and can act according to their beliefs, the Constitution does not explicitly grant Congress any power to repeal laws. Generally, the power to repeal a law is the same as the power to enact it. Congress has the power to determine income tax rates: It can use that power to create a tax, or set that tax equal to zero. However, this argument fails when the law in question, like Health Care Reform, falls outside of the realm permitted by strict constructionism. Then, there is no granted power to repeal nor to legislate in the realm in question. How can a strict-constructionist Congress repeal a law passed earlier that is unconstitutional?

The 112th Congress answered this tricky challenge mostly through bluster. H.R. 2’s Authority Statement claims that Congress has the power to repeal unconstitutional laws thanks to the “clear meaning” of the Vesting, Supremacy, and Oath Clauses, and the “clear” statements of James Madison. (It’s a good rule of thumb to recall that when lawyers use the word “clear” more than once, they don’t have a case and are hoping you don’t notice.) But the Vesting clause only grants Congress legislative authority generally, while the Supremacy and Oath Clauses enumerate no Congressional powers whatsoever. Finally, James Madison’s statements cannot add enumerated powers to the constitution. In short, from the perspective of our hypothetical strict constructionist, the Constitutional Authority Statement for H.R. 2 is a load of bunk.

This, however, will lead us to the nonsensical conclusion that a strict-constructionist Congress cannot repeal unconstitutional laws! It is hard to imagine a more ridiculous ongoing principle of government. But it’s where we are inevitably led if we follow the strict constructionists down the rabbit hole. They have presented their best arguments in H.R. 2’s Constitutional Authority Statement (admittedly, in compact form), and fallen miserably short of their own standards. A genuinely strict construction of the constitution, where Congress’s only powers are those specifically enumerated, would create a Congress incompetent to legislate, not simply on important modern issues, but in general.

Instead of this foolish approach, we must accept that reading the Constitution is always an interpretive act, bound by common sense as well as the ink on the page. Congress must not be bound by those who believe that a vague list of eighteen items is exact and exhaustive. That does not mean all laws are constitutional. It simply means that we must engage the question honestly, with thorough arguments about which laws can and cannot be permitted. To maintain the fiction that constitutionality can be boiled down to a handful of words at the beginning of a law does not preserve the Constitution. Instead, it disrespects our nation’s founding document.

Louis R. Evans ‘13, a Crimson editorial writer, is a Social Studies in Currier House.

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