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 realities of the legislative process. While the House Rule represents an important step in improving the quality of constitutional deliberation in Congress, it is unnecessarily bureaucratic, underinclusive, and fails to capture the importance of constitutional interpretation for all members of Congress, not just the introducers of legislation. The Rule also reflects a severely limited notion of what constitutional issues need to be considered in voting on legislation by completely ignoring constitutional infirmities involving individual rights, civil liberties, and any other potential constitutional issue aside from Congress’s authority. To address these concerns, this Essay proposes an improved rule for adoption in the Senate. The proposed rule requires a CAS for all legislation — not just bills or joint resolutions — but only when that legislation will actually receive a vote. Furthermore, the proposed rule makes it clear that all members of Congress — not just the introducer — have an individual obligation to consider the constitutionality of legislation on which they vote. Finally, the proposed Senate rule requires a CAS to include not just information about Congress’s Article I authority but also to address other possible countervailing constitutional issues, like individual liberties.