Althouse: "The Pledge to America released by House Republicans in September of this year included a commitment to 'require every bill to cite its specific Constitutional Authority.'"

December 20, 2010

"The Pledge to America released by House Republicans in September of this year included a commitment to 'require every bill to cite its specific Constitutional Authority.'"

"To implement this proposal, the Transition Team and the Elected Republican Leadership are recommending a change to standing Rules of the House to require that each bill or joint resolution introduced in the House be accompanied by a statement citing the specific powers granted to Congress in the Constitution to enact the proposed law."

118 comments:

former law student said...: What part of the Constitution authorizes such a requirement?; 12/20/10, 7:15 PM
Bob said...: What part precludes it?; 12/20/10, 7:17 PM
Chef Mojo said...: And Bob nails it!

It's the Rules Committee. This is about how the House passes bills and resolutions.; 12/20/10, 7:20 PM
mesquito said...: "What part of the Constitution authorizes such a requirement?"

Aricle One?; 12/20/10, 7:23 PM
mesquito said...: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

I think the operative word is "herein."; 12/20/10, 7:25 PM
I'm Full of Soup said...: Good. Next, I'd like to see them include an estimate with each bill of the bill's cost per household, per taxpayer and per citizen.; 12/20/10, 7:30 PM
Peter Hoh said...: Does this spell the end of those Congressional proclamations that designate this week as National Pickle Week and such forth?; 12/20/10, 7:32 PM
Anonymous said...: former law student wrote:
What part of the Constitution authorizes such a requirement?

Article I, Section 5

... Each House may determine the Rules of its Proceedings ...

Is this sort of lack of knowledge the reason you're a former law student?; 12/20/10, 7:47 PM
Doug Sundseth said...: FLS: "What part of the Constitution authorizes such a requirement?"

This requirement seems to me to fall comfortably under Article 1, Section 5: "Each House may determine the Rules of its Proceedings...."

Feel free to snark on, though.; 12/20/10, 7:51 PM
Doug Sundseth said...: Doh, ninjaed.; 12/20/10, 7:51 PM
Matt said...: i.e. follow a conservative interpretation of the rules of the Constitution rather than get things done. This will last about as long as Obama's promises.; 12/20/10, 8:00 PM
former law student said...: The power of the House of Representatives to make rules of proceedings is not unlimited. United States v. Ballin, 144 U.S. 1 (1892)

The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.; 12/20/10, 8:03 PM
former law student said...: Is this sort of lack of knowledge

The GOP should begin as they mean to carry on, correct? Physician, heal thyself, etc. etc.; 12/20/10, 8:08 PM
Henry said...: I expect the "whatever" clause will cover most situations.

If I was one of these people, the very first thing I would do is come up with some completely unconstitutional bill -- perhaps laying out some titles of nobility -- and defend it by citing "The Constitution or its penumbras."; 12/20/10, 8:10 PM
former law student said...: If a public law began as a House bill whose sponsors cited an inapplicable Constitutional authority, is it automatically invalid?; 12/20/10, 8:17 PM
AST said...: I'd like to see the courts apply rules striking down laws as void for vagueness, ambiguity or over-breadth. I would be good for the legislatures to have to learn to write laws clearly, rather than leaving it to the bureaucracy and the courts to fill in the meaning. Expecting appointees to fill in the meaning of what you pass gives too much authority to those who shouldn't have it.

It wouldn't bother me a bit to see Congress unable "to get things done." That was the excuse for Democrats drafting the Health Care Reform behind closed doors and shutting the Republicans out. It's also the basis for Reid pushing so many bills during the Lame Duck session. If they were all so essential, he should have brought them up in time for people to read and discuss them.; 12/20/10, 8:18 PM
bgates said...: follow a conservative interpretation of the rules of the Constitution rather than get things done

It's possible to do both - depending on what you mean by "things".; 12/20/10, 8:19 PM
Sharc 65 said...: Right, Henry, but it's not the "whatever" clause -- it's the "shut up" clause.

Realistically, despite the good intent behind this, I can see the requirement degenerating quickly into a rubber stamp reference to the Commerce Clause at the top of every single bill. Why does anyone think a liberal Congress will be any less disingenuous than a liberal Supreme Court?; 12/20/10, 8:22 PM
Palladian said...: "It's possible to do both - depending on what you mean by "things"."

You know... things! Big things! Progress! Forward! Anything! You see, the government has to always be doing something!

The voters are coming, look busy!; 12/20/10, 8:23 PM
Kylos said...: If a public law began as a House bill whose sponsors cited an inapplicable Constitutional authority, is it automatically invalid?

Go read the rule at the linked article, you'll find your answer. But then again, snark is so much fun, why bother actually informing yourself.; 12/20/10, 8:27 PM
Palladian said...: "Realistically, despite the good intent behind this, I can see the requirement degenerating quickly into a rubber stamp reference to the Commerce Clause at the top of every single bill."

Yes, I expect a stamp that reads:

ART. I, SEC. 8, CL. 3 & 18

That, as we know, covers EVERYTHING! Even National Pickle Week!; 12/20/10, 8:36 PM
Lem Vibe Bandit said...: Is this going to lead to a whole new bureaucracy?

Don't tell me Republicans are inadvertently increasing the size of the dam place.; 12/20/10, 8:42 PM
Henry said...: @Marc -- That's pretty much what I was getting at.; 12/20/10, 8:47 PM
Joe said...: (The Crypto Jew)

Yeah nothing will change...business as usual...why bother voting?

Geeez-a-Pete folks, caution is one thing, pessimism/defeatism is another.; 12/20/10, 8:48 PM
Opus One Media said...: Like so much of the silliness that embodies the GOP this won't get anywhere except to be mutter as an oath after too much strong drink.; 12/20/10, 8:49 PM
Freeman Hunt said...: I love it.; 12/20/10, 8:51 PM
Unknown said...: Nice to see they at least intend to give it a shot. Which will put them ahead of Dingy Harry and Pelosi Galore, who have yet to read the Constitution.

HDHouse said...

Like so much of the silliness that embodies the GOP this won't get anywhere except to be mutter as an oath after too much strong drink.

Yeah, unlike the Demos, who are getting ready to celebrate a century of destroying the Constitution.; 12/20/10, 8:53 PM
Joe said...: (The Crypto Jew)

Yeah HDHouse, like "PayGo" and "Posting bills on the Internet for 5 days"...yeah, tell me about things just being words...Did you forget those things?; 12/20/10, 8:55 PM
Bruce Hayden said...: I would have thought this was a bit silly, until the Administration tried to switch at the last minute between the Commerce Clause and the Taxing power when before Judge Hudson.

The problem though is that a House that imposes this is much less likely to push the envelope of Constitutionality of laws than is a House that refuses to do this. And, thus, the next time that the Democrats take over the House, you can expect this to be one of the first casualties of their reign, being traded for a large jet for the use of the new Speaker flying back and forth to her home district every week.; 12/20/10, 9:00 PM
Palladian said...: And my cynicism above doesn't mean that I don't think this is a good idea. Anything that hinders, arrests or otherwise even attempts to constrain the government in any way is a step in the right direction.; 12/20/10, 9:07 PM
roesch-voltaire said...: Good move,now I am waiting for the Tea Party to show me the part where it says we can disband the Methodist Church because separation of church and state is not in the constitution and therefore we can make laws about which church activities are legal.; 12/20/10, 9:09 PM
Opus One Media said...: I figured that this would light up the brains of some of the brain dead on here. I fully expect some rotund gadfly to to instert a need for a biblical cite as well and a clarion call to go back to the strict literal contents but then run aground when it comes to legislation that involvees

the air force
marriage
privacy
primary elections
travel
voting...

gosh I could go on and on..but that's fine ... if it isn't in the constitution then we can just not deal with it.; 12/20/10, 9:12 PM
Joe said...: (The Crypto Jew)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof (Emph. added); or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Wow, RV...this is too easy. But you keep snarking on...Stick with World Class Environmental Engineering.; 12/20/10, 9:15 PM
Joe said...: (The Crypto Jew)

...if it isn't in the constitution then we can just not deal with it.

You JUST MIGHT BE ONTO SOMETHING THERE.....; 12/20/10, 9:17 PM
Opus One Media said...: Hey Joe...

cite for me the Air Force clause would you?...I see stuff about an army and militia but no air force...

or is this just another example where elephants fly?; 12/20/10, 9:18 PM
Joe said...: (The Crypto Jew)
the air force
Wow, the old Air Force is UNCONSTITUTIONAL canard…oh well, we’ll just make it a part of the US Army, as it was and so *VOILA* it’s constitutional.

privacy
Well would you care to find it, outside of Griswold v. Connecticut?; 12/20/10, 9:21 PM
Joe said...: (The Crypto Jew)

WOW, HDHouse can’t you read, at all? I told you how it can be made CONSTITUTIONAL, should anyone care to challenge it…or did you fail reading comprehension AND US History?; 12/20/10, 9:23 PM
Peano said...: former law student said... If a public law began as a House bill whose sponsors cited an inapplicable Constitutional authority, is it automatically invalid?

No.; 12/20/10, 9:23 PM
Joe said...: (The Crypto Jew)
therefore we can make laws about which church activities are legal.
Snake handling is ILLEGAL as is Polygamy…all of which are church activities, or did you fail to think this thru, before snarking?; 12/20/10, 9:24 PM
I'm Full of Soup said...: Palladian said:

"Anything that hinders, arrests or otherwise even attempts to constrain the government in any way is a step in the right direction."

What you said is, in effect, in the Constitution when you read between the lines.; 12/20/10, 9:26 PM
Opus One Media said...: hey Joe

its not a canard. it was the army air corps. then stuff got changed. but canard or not, what of it? it isn't in the constitution so how do you deal with that and the myriad of US Code sections that exist, were practical and useful?
Amendments to these laws could never come.

That is why reasoning or lack thereof that spawns crap like this never gets anywhere except after 4 stiff drinks.; 12/20/10, 9:27 PM
roesch-voltaire said...: Hey Joe, I am just lining up with the Tea Party on this one, and to note that constitutional scholar, Christine
O'donnell, you are quoting the First Amendment, added after the constitution was written. Stick with the Tea Party Joe that is the way to go.; 12/20/10, 9:27 PM
Joe said...: (The Crypto Jew)
therefore you are quoting the First Amendment, added after the constitution was written
SIGH Stick with the Environmental engineering…the amendment BECOMES a part of the Constitution…; 12/20/10, 9:30 PM
former law student said...: Go read the rule at the linked article, you'll find your answer.

I read a memo created by some GOP functionaries. The only people who can answer my question is the U.S. Supreme Court. Everything else is guesswork. How ironic if some treasured GOP proposal gets bounced because they cited the wrong clause. I would laugh.

Further, as Lem alludes to, The general rule for process improvement is to simplify, not add complexity.; 12/20/10, 9:32 PM
Joe said...: (The Crypto Jew)
it isn't in the constitution so how do you deal with that and the myriad of US Code sections that exist, were practical and useful?
Amendments to these laws could never come.
So the ARMY is, so it’s soluble…so your point is IF you get a whole bunch of law, you can’t repeal it? WOW, just think about Jim Crowe? Whole bunches of law, THERE, guess we couldn’t be bothered to repeal or end it, eh?

You might want to you your brain, before posting….; 12/20/10, 9:33 PM
Joe said...: (The Crypto Jew)
general rule for process improvement is to simplify, not add complexity.
You did FAIL Constitutional Theory didn’t you? The POINT of the Constitution is to make it simpler to do NOTHING, than something…it was that complexity that was to guarantee individual liberty.; 12/20/10, 9:35 PM
I'm Full of Soup said...: I think it simplifies the law making process if the 1st step is to consider the constitutionality of a bill.; 12/20/10, 9:35 PM
Opus One Media said...: @joe

you really need to take a break...get some rest, drink some tea, chill.

and as a suggestion, when you think to yourself that you really have all the bases covered in an argument that usually is the moment someone else is rounding third and heading for home....

just a thought joe. simplistic solutions to complex problems are just that; simplistic.; 12/20/10, 9:38 PM
former law student said...: cite for me the Air Force clause would you?...I see stuff about an army and militia but no air force...

I'd like to see the first bill that implies the Army will exist two years from now, in contravention of Article 1, Clause 12.; 12/20/10, 9:39 PM
Opus One Media said...: @AJ

so the courts will be the gatekeeper prior to legislative action and each time Congressman Bugtussle rises to amend he would first have to have checked with the SC to get a ruling?

I gather you are nuts.; 12/20/10, 9:40 PM
Joe said...: (The Crypto Jew)
general just a thought joe. simplistic solutions to complex problems are just that; simplistic.
REALLY, Engineering is predicated upon simple answers being best, as too Science, it’s called PARSIMONY. You do have an advanced degree, right?; 12/20/10, 9:42 PM
Opus One Media said...: yes joe i have advanced degrees.

one of those degrees demanded that you put forth a thesis and then defend it and you had better have thought it through. simplistic answers don't generally cut it as you have, unfortunately demonstrated but not realized.; 12/20/10, 9:45 PM
Joe said...: (The Crypto Jew)
one of those degrees demanded that you put forth a thesis and then defend it and you had better have thought it through. simplistic answers don't generally cut it as you have, unfortunately demonstrated but not realized..
I haven’t realized it because you haven’t PROVED it, only CLAIMED it…; 12/20/10, 9:47 PM
I'm Full of Soup said...: Only liberals would immediately equate this to thinking every case needs SCOTUS review.

For your innovation-challenged low IQ brain, perhaps compare the process to a purchase order system - they ask themselves do we have the authority to do this/ buy this etc. Jeez most of the Congress criters are lawyers.; 12/20/10, 9:47 PM
Joe said...: (The Crypto Jew)

R-V, is one of those fellows who is a lot less clever than s/he believes they are…I’m sure R-V thinks he has BRILLIANTLY lampooned the Tea Party Position(s), demonstrating his/he gets his/her information on the Tea Party from MSNBC.; 12/20/10, 9:49 PM
Opus One Media said...: @AJ
"most of the congress critters are lawyers".

As this blog will clearly attest, some lawyers are, well how to say it, less gifted than others and frankly speaking I don't think that being a lawyer should be a prerequisite to congress.

IQ might be a different matter. Certainly the ability to lie, cheat and steal is settled.; 12/20/10, 9:52 PM
Opus One Media said...: Breaking news!!!

Joe thinks the tea party has a position.

Film at 11.

Geeze Joe, you shoulda said you were a Tea Partier then I wouldn't have wasted my time.; 12/20/10, 9:54 PM
Joe said...: (The Crypto Jew)
Joe thinks the tea party has a position.
HDHouse thinks he’s witty…see above reference to R-V…; 12/20/10, 9:55 PM
Palladian said...: "yes joe i have advanced degrees."

...of dementia.; 12/20/10, 10:02 PM
Opus One Media said...: ahhh Palladian...up for a glass of warm milk I see...

I find it remarkable that you are found in Joe's little rowboat. did you canoe sink?; 12/20/10, 10:06 PM
Anonymous said...: HDHouse wrote:

I figured that this would light up the brains of some of the brain dead on here. I fully expect some rotund gadfly to to instert a need for a biblical cite as well and a clarion call to go back to the strict literal contents but then run aground when it comes to legislation that involvees

the air force
marriage
privacy
primary elections
travel
voting...

There were discussions of the Air Force issue on the Volokh Conspiracy almost four years ago:

http://volokh.com/posts/1170032632.shtml

http://volokh.com/posts/1170357907.shtml

I wouldn't mind Constitutional amendments to clarify the Air Force, privacy, voting, citizenship-by-birth and "natural born citizen" issues. State bankruptcy and secession, too.

if it isn't in the constitution then we can just not deal with it.

Exactly right! (And you thought you were just being snarky!) Marriage, political parties, and primary elections shouldn't be any goddamn business of the federal government.; 12/20/10, 10:10 PM
bgates said...: I'd like to see the first bill that implies the Army will exist two years from now, in contravention of Article 1, Clause 12.

There's no Constitutional issue raised by implying the Army will exist in two years.

If Congress were to appropriate money for more than two years, you'd have something. But generally Congress provides funding one year at a time, by passing what is known as a "budget", unless a particular Congress is especially inept.; 12/20/10, 10:21 PM
I'm Full of Soup said...: Hdhouse:
You can certainly relate to members of Congress with very low IQ's. Yours is barely room temperature.; 12/20/10, 10:24 PM
former law student said...: For your innovation-challenged low IQ brain, perhaps compare the process to a purchase order system - they ask themselves do we have the authority to do this/ buy this etc. Jeez

Congress is not a burely clerical operation; Congress is the Board of Directors.

There's no Constitutional issue raised by implying the Army will exist in two years.

Congress has power to raise armies, not to maintain them. READ YOUR CONSTITUTION.; 12/20/10, 10:38 PM
Unknown said...: HDHouse said...

I figured that this would light up the brains of some of the brain dead on here. I fully expect some rotund gadfly to to instert a need for a biblical cite as well and a clarion call to go back to the strict literal contents but then run aground when it comes to legislation that involvees

the air force
marriage
privacy
primary elections
travel
voting...

gosh I could go on and on..but that's fine ... if it isn't in the constitution then we can just not deal with it.

Well, that's been The Zero's and Congress' stand the last 2 years.

HD should never invoke the brain dead, they always realize he's wandered off again.

PS The Constitution doesn't make provision for the Coast Guard or The Marines, either.; 12/20/10, 11:12 PM
Lem Vibe Bandit said...: Tonight, our local satellite, the moon, will experience a full lunar eclipse. It begins at 1:33 a.m. Eastern, followed by the onset of totality at 2:41 a.m., and the good folks at NASA say the best moment for viewing is 3:17 a.m. The eclipse will be visible across all North America.; 12/20/10, 11:14 PM
Lem Vibe Bandit said...: I've set up my phone to wake me at 3:10 am.. I'll be reporting what I see then.

wv outfab = a once in a lifetime lunar eclipse.; 12/20/10, 11:20 PM
Anonymous said...: I cannot understand why anyone would not support this basic, elementary standard for lawmakers who deal in limited powers. Very strange.

I think the house leftists in this thread have picked a side first, without considering the issue. It's good that Congress must first determine that it has the authority to make a law before it attempts to make a law. The substance of the law -- right or left -- doesn't matter.

FLS -- Virtually every motion I write starts with a standard of review. Every complaint I write starts with an assurance that the court has jurisdiction.; 12/20/10, 11:28 PM
bgates said...: Congress has power to raise armies, not to maintain them.

Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature.; 12/21/10, 12:24 AM
DaveW said...: The way you guys are talking about this makes me feel subtly excluded.; 12/21/10, 1:40 AM
Methadras said...: former law student said...

What part of the Constitution authorizes such a requirement?

I don't understand the automatic negative reflex from you. Shouldn't you be applauding such a move? Afterall, isn't it the leftard brigade that uses the Constitution as it's clarion call for all things leftard and then when it doesn't suit your whims you spout something like this? Why aren't you for something like this? You should be? Shouldn't you? What are you hiding?; 12/21/10, 1:47 AM
Lem Vibe Bandit said...: The sky is very clear.. I could see many many stars.

The eclipse is absolutely beautiful.. the reddish hue more towards the sw and lighter towards my nw... and a stretched out orion constellation at 7 oclock in a dial.; 12/21/10, 2:31 AM
Revenant said...: Sadly the eclipse wasn't visible here in San Diego -- due to rain, of all things!; 12/21/10, 3:34 AM
Revenant said...: Congress has power to raise armies, not to maintain them. READ YOUR CONSTITUTION.

Congress has the power to maintain an army indefinitely provided it does so two years at a time.

Which is what it does.; 12/21/10, 3:39 AM
Unknown said...: Wrong! We were never intended to have a standing army when the Constitution was written - that's what the militia was for (2nd Amendment). The public feared a standing army (3rd Amendment).

Which is why it says raise armies, as opposed to maintain them.

If it weren't for the Indian wars, we would not have had one - at least until the 20th century.; 12/21/10, 6:27 AM
Charlie said...: Dave Weigle has a column in Slate? Who knew?; 12/21/10, 6:46 AM
Hoosier Daddy said...: If it weren't for the Indian wars, we would not have had one - at least until the 20th century.

At the beginning of the Civil War, the US Regular Army consisted of a whopping 16,500 men (officers and enlisted) most of which were operating out West fighting Indians. The Regular army then swelled to a staggering 21,000 (officers and enlisted) during the Civil War while the remainder of the US military consisted of state raised regiments that were not part of the regular army and were largely disbanded after hostilities ceased.; 12/21/10, 7:07 AM
AllenS said...: Dave Weigle is a Journolist member. He was willing to tell any story, ridicule, and call people racist for the sole purpose of electing Obama.

Don't believe anything that he says.; 12/21/10, 7:10 AM
AllenS said...: Very good, Hoosier. The 82nd Division, which became the 82nd Airborne Division, is called the All American Division, because it was the first Army unit consisting of men from around the US. Before that you served with your State militia.; 12/21/10, 7:13 AM
Unknown said...: Thanks for this much awaited update!

Patient Satisfaction Survey Questionnaire; 12/21/10, 7:13 AM
Hoosier Daddy said...: Although I for one have no problem whatsoever in disbanding the regular army and going back to state militias (National Guard). The constitution provides for a Navy which we have, and the Marines, which are part of the Navy are constitutional and since the Navy has its own air contingent, there isn’t anything unconstitutional about rolling the air force into the Naval Air Corps.

These revisions would be compatible with the Constitution, remove the need to our overseas bases which cost billions and would require those countries who host our troops to actually pony up something for their own defense. Win! Win!; 12/21/10, 7:17 AM
Opus One Media said...: I wonder how long this thread will go on before it hits "completely silly".; 12/21/10, 7:57 AM
Lincolntf said...: How anyone could oppose this is (almost) beyond me. The Constitution is what separates us from every Nation in history, we should consult it often. If you fear that the Government will have less authority and power as a result of the proposed rules change, then you get it. That is exactly the point.; 12/21/10, 8:03 AM
AllenS said...: HDHouse said...
I wonder how long this thread will go on before it hits "completely silly".

Oh, about 7:57 AM this morning.; 12/21/10, 8:26 AM
Original Mike said...: Sounds like a lot of work, withcommittees and lawyers and whatnot. Why not just ask Nancy Pelosi whether the Constitution allows it. "Are you kidding?" is a "yes". Not sure we'll need to set anything up for "no".; 12/21/10, 8:39 AM
PaulV said...: FLS, never hear of legislative history? Dropped out that quickly?; 12/21/10, 8:51 AM
MadisonMan said...: I cannot understand why anyone would not support this basic, elementary standard for lawmakers who deal in limited powers. Very strange.

I think it's a great idea, but publicizing it is a little too much patting oneself on the back.

I wait for the announcement that all Legislators will cross only at Crosswalks and will not speed while driving?; 12/21/10, 9:10 AM
former law student said...: edutcher is absolutely right.

I'm looking forward to receiving my M-16, and I'm sure Governor Brewer is looking forward to calling the AZ militia to the Mexican border. Once our worldwide defense establishment is wound down, and the army shrunk to a few training battalions, we'll finally get back to a Constitutionally-approved military -- one more like the Swiss, Singaporeans, and Israelis have.

But then I was thinking: What of the CIA? What part of the Constitution authorizes the government to send spies into other countries? Further, because the Federal government has no general police power, the days of the DEA and even the FBI are numbered. ICE and Treasury are constitutional, so the Secret Service will live on.; 12/21/10, 9:12 AM
former law student said...: I forgot: By what authority does the Federal Government maintain the USMA at West Point? Better to spin it off as a non-profit organization. Let the states own it to train some part of their militia officers.

ROTC will come into its own, especially as their programs return to the elite schools.; 12/21/10, 9:16 AM
former law student said...: Now I'm thinking the first order of business for Boehner and McConnell should be a joint resolution to amend the Constitution to permit a standing army.; 12/21/10, 9:18 AM
former law student said...: ed: The Coast Guard's primary Constitutional duty is to prevent smuggling -- their ships used to be known as Revenue cutters.

The Marines are Constitutional as part of the Navy -- traditionally they were carried on board ship as hand-to-hand fighters.; 12/21/10, 9:21 AM
AllenS said...: Article 1, section 8 says "...and provide for the common Defense and general Welfare of the United States"

It wouldn't be that far of a stretch to rule in favor of having an Army is constitutional.; 12/21/10, 9:28 AM
Original Mike said...: Bruce said: I would have thought this was a bit silly, until the Administration tried to switch at the last minute between the Commerce Clause and the Taxing power when before Judge Hudson."

Excellent point.; 12/21/10, 9:33 AM
Original Mike said...: The Air Force is unconstitutional because the words "Air Force" are not in the Constitution?

That's got to be the dumbest thing I've seen in a long time.; 12/21/10, 9:36 AM
Lincolntf said...: The Constitution emits a penumbra that contains the right to engage in homosexual behavior while serving in the military, but does not authorize the military itself. Got it. So glad I come to such a smart Law blog.

Wv: kagan; 12/21/10, 9:36 AM
former law student said...: It wouldn't be that far of a stretch to rule in favor of having an Army is constitutional.

In any sort of statutory construction the specific governs the general. Later in that same section, the Framers detailed the elements of the common Defense: Armies, to be raised when needed, a Navy to be maintained, but to suppress Insurrections and repel Invasions, the Militia.

Similarly, by the principle of statutory construction that different words must not be given the same effect, "raise and support" (Armies) cannot be the same as "provide and maintain" (the Navy).; 12/21/10, 9:45 AM
former law student said...: The Air Force is unconstitutional because the words "Air Force" are not in the Constitution?

Is the Air Force an army of the air, and thus temporary, to be raised only when needed, funded for no more than two years at a time, or is it an aerial navy, which could constitutionally be provided and maintained?

The Air Force's origin in the Army is significant, but not dispositive.; 12/21/10, 9:52 AM
AllenS said...: Armies, to be raised when needed

We've needed an Army for a long time.; 12/21/10, 9:55 AM
hawkeyedjb said...: I think everything congress wants to do is pretty much covered by the "whatever" clause and it's corollary, the "unless it feels like it" clause.

For example, the Supreme Court validated the McCain-Feingold political speech restrictions via Amendment 1.1, which says "congress shall make no law...abridging the freedom of speech, unless it feels like it."

Similarly, the Kelo decision made it clear that government can't take private property, unless it feels like it.; 12/21/10, 10:00 AM
Original Mike said...: "The Air Force's origin in the Army is significant, but not dispositive."

It's completely irrelavant. Mental mastrabation.

AllenS is explaining to you all you need to know. Listen to him.; 12/21/10, 10:04 AM
former law student said...: It's completely irrelavant. Mental mastrabation.

That's what I thought, but the Boehner-McConnell memo says different:

It also demonstrates to the American people that we in Congress understand that we have an obligation under our founding document to stay within the role established therein for the legislative branch.

Big government includes our big military. Let's roll the military back to Constitutional levels as well.; 12/21/10, 10:13 AM
Original Mike said...: "That's what I thought, but the Boehner-McConnell memo says different:"

I'll leave you to your mastrabation. Sorry to have interrupted.; 12/21/10, 10:20 AM
Sofa King said...: FLS, a reductio ad absurdum is not persuasive when the reduction is implausible.

Is the Supreme Court likely, in the reality of the physical universe we inhabit, to rule that the Air Force is not Constitutional? No. So is citing the Constitutional provision for the raising of armies sufficient to meet the proposed requirement? Yes.

Your reductio is a red herring because in order for it to happen, the Supreme Court would have to engage in a radical departure from its previous jurisprudence, something that is so unlikely that it can be dismissed out of hand.; 12/21/10, 11:12 AM
former law student said...: As I understand Sofaking, he thinks this requirement to cite specific Constitutional authority is purely masturbatory.

Then why have it?

I'm looking forward to the lively debates that will follow as the pro-defense legislators put forth their feeble justifications. Hopefully their opponents will have primed themselves with arguments from the Federalist (and anti-Federalist) papers, to show them where they are exceeding the authority the Framers granted Congress.

And when will Congress send me my M-16, as part of their authority to arm the militia -- i.e. all able bodied male citizens between 17 and 45. They can get my address from my tax returns.

Shipping out some 50 million US-built service rifles will stimulate the economy, and keep the post office busy as well.; 12/21/10, 11:49 AM
former law student said...: the Supreme Court would have to engage in a radical departure from its previous jurisprudence

Dude, the Tea Party wants to shrink the Commerce Clause down to the the width of a blonde's eyelash. Can't get there unless the Supreme Court rolls back 70+ years of CC jurisprudence.; 12/21/10, 11:52 AM
AllenS said...: If you want an M-16 that badly, fls, go buy one.; 12/21/10, 12:03 PM
Methadras said...: AllenS said...

If you want an M-16 that badly, fls, go buy one.

He's waiting for the government to give him one. Typical leftard.; 12/21/10, 12:36 PM
former law student said...: He's waiting for the government to give him one.

Article I Section 8

The Congress shall have Power To provide for organizing, arming, and disciplining, the Militia.

Get to work, Congress.; 12/21/10, 12:54 PM
AllenS said...: fls,

Join the Army.; 12/21/10, 2:12 PM
AllenS said...: Even if you have a limp wrist, the Army will accept you now.; 12/21/10, 2:21 PM
blake said...: Even FLS's reductio isn't very convincing. I'm fine with a strict, to-the-letter interpretation of the Constitution. If the people want to pay for overseas bases, let them amend the Constitution appropriately.

I'm not convinced Americans have ever wanted all these foreign entanglements.; 12/21/10, 2:28 PM
former law student said...: Join the Army.

Army's only temporary. The militia is for the long-haul.; 12/21/10, 3:59 PM
Methadras said...: former law student said...

He's waiting for the government to give him one.

Article I Section 8

The Congress shall have Power To provide for organizing, arming, and disciplining, the Militia.

Get to work, Congress.

You talk out of both sides of that rancid hole you call a mouth. I'm going to ask you again, why you are against this pledge to cite specific Constitutional authority against pending legislation?; 12/21/10, 6:16 PM
former law student said...: why you are against this pledge to cite specific Constitutional authority against pending legislation?

Violates "Be careful what you as for," the law of unintended consequences. I see no upside, only downside. But with any luck it will bite conservatives in the ass.; 12/21/10, 9:28 PM
Duncan said...: To save drafting costs:

"No powers granted to Congress under the Constitution, as amended, authorize the actions effected by this legislation."

Slap that one on most of the bills and save time. Satisfies the pledge too.; 12/22/10, 12:21 PM
Methadras said...: former law student said...

Violates "Be careful what you as for," the law of unintended consequences. I see no upside, only downside. But with any luck it will bite conservatives in the ass.

Oh yeah, that's a really inarticulate and extremely vague position to hold. I can see now why you are vehemently against it. :rolleyes:; 12/22/10, 3:17 PM
David Joffe said...: Why that's easy of course, whatever it's about, it's simply the Commerce Clause!; 12/26/10, 8:25 AM
David Joffe said...: "But with any luck it will bite conservatives in the ass."

If it does - and it will - then it's fulfilling its precise purpose.; 12/26/10, 8:26 AM