Wednesday, January 5, 2011

The Return of the Banana Republic(cans)!

This is a political post.

The revolution WILL be televised. If you count C-span as a channel.

To start the new Congress, the new Republican majority in the House of Representatives will read into the official record, the Constitution of the United States. That's actually pretty neat, considering its only be read in its entirety into the record twice in history. Then, as a new rule, all new pieces of legislation will have cite as specifically as possible the assumed power in said Constitution the submitting Congressperson thinks gives him the power to write the aforesaid legislation. This will be called a "Constitutional Authority Statement."

This will in effect, make the appointed position of the Clerk of the United States House of Representatives, currently filled incidentally by the Honorable Lorraine C. Miller - a black woman from Texas - one the top ten most powerful positions in the world. This is because it will most likely be the Clerk's job to determine, since the concern here seems to be congressional authority, if the proposed piece of legislation's argument for constitutionality is valid. Although the exact rules haven't been spelled out yet, the idea that some personal judgment as what is and isn't within the scope of Congress's powers won't be used in the determination process borders on inane fantasy.

So in one fell swoop, despite the fact that Congressional lawyers would already checked over proposed legislation anyway before it was ever submitted, the new House majority is attempting to horn in on the job of the Supreme Court. Which is a great way to protect the Constitution. [insert sarcasm here]

Here are the issues as I see them. I my humble, barely legally educated opinion.

By changing the standard that formerly presumed all congressional action was initially considered constitutional until judicial review to one that presumes nothing is constitutional without cite, you imbalance the powers set forth in the very Constitution they're trying to protect. Congress is not imbued with some magical power to declare their actions constitutional, nor is it the congressperson's job to interpret the Constitution. The power to determine constitutionality and that task of interpretation belong specifically to the Courts, per that same Constitution. And by moving that metaphorical scale where the law is weighed, the Republicans threaten the very system they claim to be protecting.

And hopefully they're not making the basic text the basis to work from, or the Republicans might be throwing out over 200 years of Supreme Court interpretations and established legal doctrine. Just so you know, established legal doctrine is the grease that makes this country work. A great deal of the basis of the laws that make America actually run on the day to day are based not upon the actual literal text of the Constitution, but upon Supreme Court rulings as to what that text means. I'm not sure how a Congressional Authority Statement is supposed work, but unless they read like legal briefs, we may have a new situation.

Adding a step might seem like a bright idea, if you don't know how the system actually works, but it's basically starting to look like either a political sop to the single minded Tea party movement, or a backdoor coup attempt.

Side note to the Republicans: Repealing the Patient Protection and Affordable Health Care Act probably aint' gonna happen. It's called a veto.

(And why don't the Democrats refer to Republican action as an attempt to repeal the Patient Protection Act?)

So to save the country and the Constitution, the Republican elite are don't care if they burn the House down. All for the sake of party.

1 comment:

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