Here is over an hour of fairly technical, seemingly trivial debate by a House Committee marking up a bill to further restrict the availability of abortions under the Affordable Care Act. The interesting part starts about a half hour in when Congressman Weiner objects that the bill fails to meet the Republicans' new rule that it contain a specific citation to the provision of the Constitution that gives Congress the authority to enact it.
Why is this interesting (other than for people like myself who might be geeky enough to find this stuff inherently interesting)? Recall that the new crop of Republican House members rode in to power in part by questioning whether the federal government has in recent decades acted beyond what they perceive as its legitimate limited powers. One of the solutions they proposed was to require that every bill introduced in the House must carry a description of the Constitutional authority for enacting it. One might well question the point of this rule, since the Congress cannot bind the courts by its own opinions of the Constitutionality of the legislation it enacts, but let's grant that the rule could serve a useful purpose by at least forcing Congress to think about the Constitutional source of power for its legislation. In fact, Congressman Weiner, a liberal Democrat, states that he is a supporter of the rule for that reason.
Anyway, here it is one of the very first times that Republicans are compelled to comply with their own rule, and their attempt at doing so seems rather perfunctory at best, lacking the critical element of a citation to an actual clause of the Constitution that the rule seems to require. Indeed, if the statement of Constitutionality contained in this bill suffices to comply with the rule, the rule has already been rendered almost meaningless. Maybe not quite as meaningless as a statement that Congressman Weiner's daughter has curly hair, in the example the Congressman gives, but pretty meaningless nevertheless.
Is this just an example of Republican hypocrisy, or grandstanding? It might be more an example of the new Republican majority opening up a can of worms they did not quite realize they would be opening. For this bill raises constitutional issues in two very tricky areas for the Republican majority. For one, since it deals with amending the Affordable Care Act, it forces the Republicans to confront the constitutionality of health care legislation. They would like to be able to say that since the Act itself has been held unconstitutional (by two out of four federal judges who have considered it), then any legislation amending that act must be constitutional. That argument does not quite work, unless Congress is trying to repeal the act in toto. For if Congress is merely changing some of the provisions of the health care act, then it is also legislating in an area that the Republican majority would like to say went beyond its constitutional authority in the first place. That might require Republicans to admit that the original act was authorized by the Commerce Clause or some other Constitutional provision.
The second tricky constitutional issue for Republicans is abortion. The desire of socially conservative Republicans to restrict abortion rights as much as possible runs smack into their expressed concern about keeping Congress within its proper constitutional bounds. The problem they have is that the Supreme Court has clearly held that legislation that unduly restricts a woman's right to have an abortion is unconstitutional. So justifying any piece of legislation that restricts abortion rights right away presents a constitutional problem that cannot be avoided. It's hard to find a constitutional provision justifying legislation restricting abortion rights when the Supreme Court has clearly held that the Constitution prohibits Congress from unduly restricting a woman's right to choose.
So what happens to the whole effort to force Congress to think harder about the constitutional authority for expansions of federal power? It might not quite be empty rhetoric just yet, but the movement already seems to be foundering on the controversial issues of health care and abortion. And I'm sure we will see more examples in the future where one side or the other has reason to avoid making a clear statement about the constitutionality of legislation they propose. It's been true throughout our history that both parties have favored expansions of federal power when it suits their interests, and both have opposed expansions of federal power when they simply didn't like what the federal power was doing. What both Republicans and Democrats may soon realize is that their attacks on the other side's constitutional authority to enact particular pieces of legislation might just be a way to lend more weight to what are basically policy disagreements. The truth is that as for the Constitution goes, each side has its favorite parts, but they don't have fundamentally different conceptions of the Constitution as a whole.