The Obligation of Members of Congress to Consider Constitutionality While Deliberating and Voting: the Deficiencies of House Rule XII and a Proposed Rule for the Senate
Most scholarly attention on constitutional interpretation is focused on the judicial branch and its role in our system of separation of powers. Nonetheless, constitutional interpretation should not take place solely in the courts. Rather, history suggests our Framers envisioned that members of Congress, as well as the President and the courts, would have an independent and important role to play in interpreting our Constitution. Yet this obligation has eroded such that House Speaker John Boehner, with the support of the Tea Party and his Republican colleagues, called for a "sea change" in the way the House of Representatives operates, with "a closer adherence to the U.S. Constitution." To that end, Speaker Boehner amended House Rule XII to require members of Congress who introduce bills or joint resolutions to provide a Constitutional Authority Statement ("CAS") outlining Congress's authority to adopt the bill or joint resolution.
This Essay identifies, explains, and critically explores four key deficiencies in the House Rule in light of the history of constitutional interpretation in Congress, the incentives of members of Congress, and the * United States Special Envoy to the Great Lakes Region of Africa and the Democratic Republic of the Congo. The author previously served as a U.S. senator from Wisconsin from 1993 to 2011, Wisconsin state senator from 1983 to 1993, Lecturer in Law at Stanford Law School, and Visiting Professor of Law at Marquette University Law School. Special thanks go to Paul Brest, Barbara Fried, Larry Kramer, the participants in the Stanford Law School Faculty Workshop, and Dean Joseph Kearney and Matthew Parlow at Marquette University Law School. I also want to thank my tireless research assistants Gabriel Dobbs and Matt Woleske, whose efforts made this Essay possible.
The Obligation of Members of Congress to Consider Constitutionality While Deliberating and Voting: the Deficiencies of House Rule XII and a Proposed Rule for the Senate,
67 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol67/iss3/4