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

By Feingold, Russ | Vanderbilt Law Review, April 2014 | Go to article overview

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


Feingold, Russ, Vanderbilt Law Review


I. INTRODUCTION

There 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 a hard enough time being a senator, much less a 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, I am not going to try to be a Supreme Court [justice] and Senator at the same time."9 And to the follow-up question as to whether he thought the provision was constitutional, Alexander simply reiterated, "That's the question before the Supreme Court,"10 almost as if it would be improper for him to comment on this point while the Court was reviewing the law.

Now in fairness, these questions were asked of these senators on the fly. As I well recall from eighteen years of facing similar spontaneous inquiries, reporters asked these questions as part of "the ambush" that always occurs when senators emerge from their Tuesday party caucus lunches in the Capitol. Interesting, though, is that a question that could have been easily and probably inconsequentially met with oft-used dodges such as "no comment" or "I'll have my press secretary get back to you," was instead handled with the firm suggestion that the question was misdirected when posed to a member of the legislative branch. Apparently this issue of constitutionality was solely the province of the nine Justices whose majestic building could be seen through the windows near the elevators into which each senator disappeared after speaking to the reporter.

The lack of senatorial interest in the constitutionality of measures on which they cast votes is perhaps no great surprise to observers of modern Congresses.11 As of the commencement of the 112th Congress in January 2011, however, this is somewhat ironic. While Republican members in the House vowed to renew focus on the constitutionality of legislation, their allies in the Senate appeared to take a very different tack by declining to assess the constitutionality of the Voting Rights Act. Even before formally taking the reins, the new House leadership, headed by Speaker-elect John Boehner of Ohio, announced a series of changes to the House Rules. They claimed to offer a "sea change" in the way the House operates, leading to "greater openness, deliberation, efficiency and a closer adherence to the U.S. Constitution."12 This change included the adoption of a House rule requiring all bills and joint resolutions to include, at the time of introduction, a Constitutional Authority Statement ("CAS") outlining the source of Congress's constitutional authority to adopt the legislation.13

This approach was a natural outgrowth of the Republican Party's highly effective political message from 2010, which was fueled by the Tea Party's emergence in late 2008 and 2009.14 The proposed changes were drawn from the Tea Party manifesto known as the Pledge to America,15 which Boehner said represented "the promises . …

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