In their "Pledge to America," House Republicans have promised to "require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified."
On September 22, Newsweek's Ben Adler denounced that simple pledge as "dangerous even as a mere suggestion," complaining that it intrudes on the constitutional prerogative of the courts to decide the constitutionality of federal law.
Now that he's been called out by NRO's Ramesh Ponnuru on his ludicrous complaint, Adler doubled down on his argument in a Newsweek Gaggle blog post yesterday, suggesting that the policy could endanger national security after a devastating terrorist attack:
If the constitutional vetting team makes decisions through a partisan or overly reductionist lens, it might preemptively throw out bills that would have passed judicial review. Maybe this would not bother Ponnuru when the subject is legislation to ban pay discrimination, but how would he feel if the country is attacked and President Jeb Bush wants a host of new surveillance powers that his congressional constitution team rejects as a violation of the Fourth and Fifth Amendments?
Of course the history of the presidency in this country is one replete with strong unilateral moves by the chief executive during national emergencies that initially ruffled congressional feathers but eventually passed court muster. In light of that, Adler's hypothetical is highly unlikely.
What's more, Adler is laboring under the presumption that the GOP is promising "to create some vaguely defined board in Congress with the power to prevent legislation from coming to a vote if this group of (political?) appointees deems it unconstitutional."
Adler is clearly reading that bureaucracy into the pledge's language. It's arguably more likely that the House Rules Committee, which writes the rules of debate for every piece of legislation to hit the House floor, would be tasked with ensuring that all legislation to be reported to the floor has the required constitutional justification language in the text.
The Rules Committee traditionally includes minority party representation, although the majority party comprises a super majority (9 out of 13 members) of the committee, befitting the role of the committee as an "arm of the leadership" of the House.
