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 would have an independent and important role to play in interpreting our Yet this obligation has eroded such that House Speaker John Boehner, with the support of the Tea Party and his Republican colleagues, called for 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 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 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 CAS for all legislation-not just bills or joint resolutions-but only when that legislation will actually receive 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 CAS to include not just information about Congress's Article authority but also to address other possible countervailing constitutional issues, like individual liberties.I. INTRODUCTIONThere were no dissenting votes in 2006 when the U.S. Senate last voted to reauthorize the Voting Rights Act.1 Nonetheless, on June 25, 2013, the U.S. Supreme Court decided Shelby County v. Holder,2 which struck down section 4(b) of the Act3 and, by extension, the preclearance requirement in section 5-both key provisions of the law since its original enactment in 1965.4 Yet when several of the senators who had voted for the law were asked before the Court decided Shelby County whether they felt the law was constitutional, they neither defended their votes nor expressed any second thoughts. Rather, their consistent reaction to this question can be summarized as that's not my job.Senator Lindsey Graham of South Carolina was reported to have replied after a long, awkward pause that he had not even thought about it.5 I'll leave that to the courts, he said, I'm having hard enough time being senator, much less Supreme Court justice.6 Graham, one of the most senior members of the Senate Judiciary Committee, which thoroughly vetted the Voting Rights Act 1 2 3 4 S. 6 reauthorization bill before sending it to the floor,7 was not alone. His close ally John McCain, the senior senator from Arizona, said, I haven't-I'm worried about other things.8 And Tennessee Senator Lamar Alexander similarly disclaimed responsibility for having an answer to this sort of question, saying, No, am not going to try to be Supreme Court [justice] and Senator at the same time. …