In light over the mess that is Obamacare, its judicial history, and the Obama Administration forcing private religious groups to cover contraception, it is time to consider key changes in our federal legislation. We should consider reversing the presumption that bills passed by Congress are constitutional. We should also require each bill to indicate where in the Constitution the federal government is authorized to act as the bill proposes. This second suggestion was actually passed as a rule by the House in 2011 and it should be codified.
If the presumption is reversed, the federal courts would instead presume that enacted federal laws are unconstitutional. The courts could do the same with executive orders issued by a president, and administrative rules and regulations enacted by unelected bureaucrats.
To make this change effective, federal judges would need to return to interpreting the Constitution not as a “living, breathing document” subject to changes based on the political and cultural leanings and pressures of the day, but as a document whose words have meaning and which can be changed only through the amendment process, not judicial edict.
Now, the federal judiciary and the Supreme Court have frequently overstepped the boundaries of the Constitution and authored controlling decisions based on things other than the Constitution itself. I have frequently decried this activism which expands federal power at the expense of states, localities and individuals, and elevates rights to the level of constitutional magnitude the Founding Fathers never could have dreamed of. Courts often rely on precedents—higher court decisions in earlier cases that have similar issues of fact and law. This is understandable as our system demands a level of consistency and predictability. Judges are thus extremely reluctant to overturn precedent. However, this reluctance means bad legal decisions have a penchant of surviving decades.
I still do not trust unelected activist jurists to faithfully interpret the Constitution. But I trust Congress, presidents and administrative minions even less.
Congress, the legislative branch of our federal government, has several duties under the Constitution. Its primary function is to originate bills to be voted on and, if passed, sent to the president for his signature or veto. Signed bills (or vetoed bills Congress overrides) become federal laws.
Often laws contain “enabling” language that directs administrative agencies in the executive branch to establish rules and procedures to implement the law. As a simplistic example, Congress may pass a bill that contains standards for clean drinking water. Companies that engage in activities (e.g. oil drilling, mining, etc.) that might result in some level of drinking water chemical contamination need to know what they can legally do. The bill may set a safe level of the amount of certain chemicals that can be found in drinking water supplies, or they may instruct the Environmental Protection Agency or another agency to develop the standards. If the bill is signed into law, the designated agency then promulgates rules and regulations to govern the companies’ activities consistent with the new law.
Because our federal government is made up of three co-equal branches of government—the Executive Branch of the Presidency and administration, and the Judicial Branch of the Supreme Court and lower courts—each branch has traditionally given deference to the decisions of the others. When a bill becomes law, and someone challenges the constitutionality of the law, the federal courts will presume the law is constitutional. This is the judiciary giving deference to Congress. Courts also give agency rules and regulations a level of deference.
The issue now has become Congress’ contempt for and ignorance of the Constitution. Each member swears an oath to support and defend the document yet it seems few have them have read it, know what it says, or what the words in it meant to the drafters. If Congress is passing laws without regard for their authority under the Constitution, then it is not just the underlying laws that are unconstitutional. Administrative agencies may also be creating unconstitutional rules and regulations because (a) Congress had no constitutional authority to regulate in the first place, and/or (b) agency actions disregard the Constitution because they are charged to implement a law, not evaluate their constitutional authority.
Regardless of the issue, members of Congress, Supreme Court justices, presidents and other federal administrative leaders have all contributed to this desire to mold the Constitution as though it were a block of never drying clay. And both parties are guilty. Lobbyists, citizens, interest groups, and political and cultural realities all put pressure on political leaders because they must be elected and regain the votes to be reelected every few years. Representing constituents means, presumably, listening to them and weighing their concerns while making decisions. It is more difficult to stay in office long if you aren’t listening.
The same realities unfortunately also pressure judges and justices who, at the federal level, are unelected and serve for life. This is why we get cases like Plessy v. Ferguson that constitutionalized “separate by equal” facilities and led to Jim Crow laws, Roe v. Wade, Lawrence v. Texas which elevated to constitutional magnitude the right to engage in sodomy, and many other activist cases. Decisions like these result from disregarding the Constitution’s language in favor of previous activist precedents, current political pressures, and other non-judicial influences. You would think unelected lifetime serving judges would be more immune to such pressures. Often they aren’t.
Constitutionally justifying bills, rules and regulations is a theoretical no-brainer. If you present a bill in Congress, you ought to be able to show where the Constitution authorizes the federal government to regulate as your bill says. For example, with Obamacare, Congress would have to delineate what language in the Constitution specifically authorizes Congress to regulate the health care and insurance industry as proposed in the bill. Then, if the law is challenged, the courts can look to the delineated language and determine whether Congress acted with proper authority
Congress itself, and its ignorance or disregard of its constitutional duties, is probably the biggest obstacle to this change. Yes, lobbyists, power and perks, popularity, self-preservation, questionable ethics and other things that lead to corruption and expanded federal authority are obvious problems. But plain ignorance or discounting of, or contempt for the Constitution is the worst obstacle because it is so fundamental. Understanding the Constitution goes to the core of public service.
Yet you wouldn’t know that from powerful Democrats.
Former Speaker Nancy Pelosi, D-CA once disgustedly asked if someone was “serious” for asking where the Constitution grants Congress authority to impose an individual health care mandate. The temerity for someone to question her about constitutionality! If the Democrats retake control of the House, she would likely be reinstalled as Speaker.
Rep. Forney “Pete” Stark, D-CA proudly argues there are “very few constitutional limits” preventing the federal government from imposing rules governing your private life. Rep. James Clyburn, D-SC has even admitted Congress just doesn’t care about the Constitution. Both are current high-ranking members with Stark serving on the powerful Ways and Means Committee, and Clyburn, a former Majority Whip, serves on the Joint Select Committee on Deficit Reduction.
Wow, great job, guys. With “spendthrifts” like these, who needs a constitution?
Rep. Kathy Hochul, D-NY, in dealing with the Obama Administration’s contraception fallout, averred Congress is “not looking to the Constitution” when deciding whether to require private or religious groups to pay for anything. She continues to serve.
Rep. Ciro Rodriguez, D-TX didn’t even know the “Interstate Commerce Clause”—one of the primary supposed constitutional bases for Obamacare—was in the Constitution. He lost reelection in 2010 but is running to regain his seat this year.
Rep. Phil Hare, D-IL admitted he doesn’t worry or care about the Constitution when it comes to regulating health insurance. He lost reelection in 2010 and is not running this year.
New Jersey Sen. Frank Lautenberg once dangerously claimed Republicans “don’t deserve the freedoms in the Constitution.” Too bad for him he won’t get help identifying these freedoms from his fellow Democrats.
Some institutional Republicans have problems following the text of the Constitution as well. They just seem to be a bit smarter about not being caught on camera admitting it.
If members of Congress are not going to read the Constitution, or choose to remain ignorant of its contents, isn’t it only reasonable to presume they act unconstitutionally and against their oath? Changing the presumption would make Democrats more focused on their actual limited constitutional duties and boundaries, and would put Republicans who claim to be for smaller, limited government to the test.
Obviously I am being intentionally provocative, not necessarily practical. I understand that this proposal would have many potential problems. How would federal laws, rules and regulations go into effect if they are presumed unconstitutional? Would each and every one need to be challenged in court? Would we need a separate “constitutional” court with exclusive jurisdiction to rule on the constitutionality of new laws and rules prior to implementation? What would be the practical impact on the military, commerce and trade, foreign affairs, etc. if legislation and regulations had delayed implementation? Would there be an exception for bills passed to address emergency situations?
Yes, changing the presumption creates many issues—perhaps more than the status quo—and these are just a few of the practical difficulties. Nevertheless, it is something we should at least consider if for no other reason than it might actually motivate our leaders to get back to our republic’s first principles as reflected in the actual text of the Constitution and our other founding documents.
Why should we presume that acts of Congress are constitutional when people like Pelosi, Stark and Clyburn serve in Congress? And why presume the constitutionality of administrative rules and regulations enacted to implement these acts and when such agencies act as quasi-legislatures?
Perhaps we shouldn’t anymore.