Newsweek's Ben Adler is decidedly cool to the newly-unveiled Republican "Pledge with America." No surprise there, coming from a liberal journalist. But among his criticisms, perhaps he's most off-base in his complaint about Republicans' promise to ensure that legislation must be constitutional before it is passed along to the president for his signature (emphasis mine):
Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.
In those three sentences, Adler betrays both his ignorance of the U.S. Constitution and its imperative on all members of all three branches of government to uphold the Constitution's limits on federal power.
First off, let's look at the pertinent language of the Pledge itself, which Adler failed to provide a link to anywhere in his 7-paragraph September 22 blog post. From page 9 of the 48-page PDF version of the Pledge to America:
[W]e are offering a plan to reform Congress and restore trust so that we can put power back where it belongs: in the hands of the people. We will govern differently than past Congresses of both parties. We will require that every bill contain a citation of Constitutional authority.
Every bill must merely contain a citation of the section(s) of the Constitution which authorize the legislation in question. This requirement doesn't mean that congressmen couldn't make all manner of specious claims of constitutional authority which would be rejected later by the courts. It simply means all legislation must stipulate how it is is written in pursuance of the Constitution before a vote on passage can be taken.
Can Congress require itself to do this? It most certainly can, contrary to Adler's complaint. "Each House may determine the rules of its proceedings," according to Article I, Section 5, Clause 2 of the U.S. Constitution.
What's more, it's not just judges, but every senator and representative who is bound "by oath or affirmation" to "support the Constitution." That language in Article VI is clearly intended to bind all U.S. government officials to pursue their duties in accord with the limits the Constitution draws on the power of the federal government.
Congress, the courts, and the president all have a positive, constitutional obligation to safeguard the Constitution and discharge their duties in line with its limits on their powers.
Far from being "dangerous," a fresh commitment by Congress to at least explain how it sees the legislation it passes in light of the Constitution should be welcomed across the political spectrum.
