Dave Weigel reports that even though the Republican House requires all bills to identify their constitutional justification, members still feel they can legislate on whatever they want.
The Constitutional Authority Statements filed so far in the 112th Congress tend to support that view. They’re a fascinating exercise. More than 1,200 pieces of legislation have been introduced so far in this Congress, slightly more coming from Republicans than from Democrats, and all of them are accompanied by statements. The main lesson is the same that a lot of legal cynics predicted last year: Almost anything can be justified by citing the Commerce Clause, which allows Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” or the Necessary and Proper Clause, which allows Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
Sen. Mike Lee (R-UT) gives Weigel a smart quote that cuts to the essence of this: “Just the mere fact that they start these discussions, that’s helpful. The extent to which they turn out to be helpful will turn on how much actual analysis takes place, because there are ways of taking the Commerce Clause and making it apply to everything. That’s not new. If that’s all that happens, then this isn’t going to do much.”
As is the case with the Obamacare lawsuits, it is crucial to reintroduce the doctrine of enumerated powers into the mainstream political debate. Otherwise, this is all symbolism.