Among the provisions in the “Pledge to America” unveiled today by House Republicans is a section entitled “Adhere to the Constitution.” Here’s the text:
For too long, Congress has ignored the proper limits imposed by the Constitution on the federal government. Further, it has too often drafted unclear and muddled laws, leaving to an unelected judiciary the power to interpret what the law means and by what authority the law stands. This lack of respect for the clear Constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year. We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.
At The Wall Street Journal’s law blog, Ashby Jones wonders “just how effective such a requirement would be in practice.” It’s a good question. Personally, I’m all for making our elected officials justify their every move. But that doesn’t mean we won’t still need “an unelected judiciary” to review suspect laws. Keep in mind that every member of Congress has already taken an oath to uphold the Constitution, yet as Rep. James Clyburn (D-S.C.) admitted to Fox News host Andrew Napolitano, "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do."
And what’s to stop Congress from relying on dubious constitutional justifications? The Patient Protection and Affordable Care Act, for example, explicitly cites the Commerce Clause for its sweeping new authority to require every American to buy health insurance. That allows ObamaCare to pass muster under this section of the “Pledge to America,” which is probably not what the House Republicans had in mind. One way or another, controversial laws are going to end up in court.