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The Constitution and the 112th Congress

This Washington Post front-page storyis about how the Constitution is the focus of the new GOP House rules.  It is very much worth reading, even though the Post calls it "the tea party-ization of Congress."  Silly, isn't it.  But, ignore the bias and you learn much about Boehner's intentions.  The Constitution will be read aloud on January 6th.  There are interesting quotes from many folks, including Boehner, Amar, et al.  Is this cosmetic stuff only?  I'm hoping not.

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On one level it might be cosmetic. On another level it might end up being substantial.

Scalia's objections aside, some federal judges do place more weight on the legistlative history of an act. I think this might give more weight to legistlative history.

The original draft of the health care bill called the penalty a tax and put it in the IRC. Cosmetically the Senate didn't want to raise taxes, so it called it a penalty. Cosmetically Obama didn't want to it be called a tax on Fox News, but he certainly wanted it to be a tax so it could fit itself into the IRC.

Oh my God! Standards of review are actually less strict for the taxing power than the commerce clause. Is this the rope Boehner is trying to give congress so that it can hang itself?

On the other hand if Congress gets more explicit, the courts will probably act like math teachers giving partial credit to students who show work. It doesn't have to be the best answer to get judicial defference.

This might cause coin flips to break in either direction. (a great Kennedyesque sentence.)

Some things are clearly constitutional, some things are clearly unconstitutional. A lot of stuff lies in the middle. The problem with stuff in the middle is that it aquires precendent, that might arbitrarily put it on one side or the other. Congress getting explicit would tend in the long run to make more legistlation constitutional.

I mean the Senate learns the legal jargon, and calls a rose by a name that smells constitutionally sweet(tax instead of penalty).

What is constitutional thus advances in a way that is akin to terrorism(a la Carnival Booth).

Are you calling congress terrorists? What the heck, it sounds fun! but the larger point is that like the terrorists that can game our security measures if they have a discernible principle...the law which must be discernable and predictable, can't prevent the eventual constitutional status of the entire gray area.

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