Womens Health

Waxman and Pallone Ask "Where's the Constitutional Authority" on H.R. 358?

| by

Today Rep. Henry A. Waxman (D-CA), Ranking Member of the Energy and Commerce Committee, and Rep. Frank Pallone, Jr., (D-NJ) Ranking Member of the Health Subcommittee, sent a letter (the full text of which is below) to Congressman Fred Upton (R-MI), Chairman of the House Energy and Commerce Subcomittee, urging him to withdraw consideration of H.R. 358, a bill which among other things would permit hospitals to deny life-saving treatment to pregnant women, unless and until it is  re-introduced with a proper citation of constitutional authority, in accordance with a rule passed by the House on the first day of the new session.

After last November's election, and upon taking leadership of the House of Representatives, House GOP leadership including Speaker of the House John Boehner and Majority Leader Eric Cantor made a big show of insisting that they would do everything the "Constitutional way," whatever exactly that means. 

One thing it did mean was a change in the House rules to require that every bill introduced include a statement of the ways in which the proposed law was tied to Constitutional authority.

A December 17, 2010 memo from then Speaker-designate Boehner, Cantor and others to all members of Congress and their staff read as follows:

Popular Video

A police officer saw a young black couple drive by and pulled them over. What he did next left them stunned:

Popular Video

A police officer saw a young black couple drive by and pulled them over. What he did next left them stunned:

The Pledge to America released by House Republicans in September of this year included a commitment to “require every bill to cite its specific Constitutional Authority.” To implement this proposal, the Transition Team and the Elected Republican Leadership are recommending a change to standing Rules of the House to require that each bill or joint resolution introduced in the House be accompanied by a statement citing the specific powers granted to Congress in the Constitution to enact the proposed law.

Well, surprising as I know it may be to many of you, GOP leadership has apparently decided this rule is a non-negotiable... except when the rule doesn't suit their interests. The requirement of citing the Constitution for each and every piece of legislation was suddenly less important when it came to profoundly anti-choice legislation rushed through Congress as a "top-priority."

Waxman and Pallone wrote that H.R. 358 was was introduced:

"without a valid statement of constitutional authority as required under the new House rules adopted in January.  We respectfully urge that the bill not be considered in Committee unless it is re-introduced with a proper citation of constitutional authority.

Chairman Pitts’s bill is an assault on a woman’s access to abortion services, wrote Waxman and Pallone. 

Its apparent objective is to make it impossible for women to choose an abortion by effectively eliminating coverage for the necessary medical services.  It also calls into question the obligation of health care providers to provide the emergency services needed to save the life of a pregnant woman.  Because the bill represents a federal intrusion into the most intimate personal decisions of women and families, it is exactly the type of legislation that most needs a clear statement of Congress’s constitutional authority.

At the markup of the bill in the Health Subcommittee, Rep. Anthony Weiner (D-NY) raised a point of order against consideration of H.R. 358.  Mr. Weiner quoted from House Rule XII, clause 7(c)(1), which provides: 

“A bill or joint resolution may not be introduced unless the sponsor submits for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.” 

Mr. Weiner then read from the statement submitted by Subcommittee Chairman Joe Pitts, the sponsor of the legislation, which stated in full: 

“Congress has the power to enact this legislation pursuant to the following:  The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act.”

Mr. Weiner argued that the statement submitted by Pitts fails to identify any specific provision in the Constitution that authorizes Congress to enact his legislation.  "Indeed," the letter continued, "it is impossible to divine any constitutional basis for Mr. Pitts’s bill from his statement."

Perhaps caught in an "oops" moment, the GOP got around this by ruling Weiner's point during markup as "out of order," and basically replied that "you should have pointed out this problem when the bill was introduced."

The Waxman-Pallone letter argued that failing to withdraw and reintroduce the bill with the proper constitutional citation "will make a mockery of the rule" created "with great fanfare" by the GOP itself only a month ago. 

According to the Parliamentarians, the chair judges only whether a constitutional statement has been submitted at the time of introduction, not whether the statement is valid.  If members cannot raise a point of order to enforce the constitutional statement rule during committee consideration of the rule, there is no point at which the rule can be enforced.

Perhaps the reason Mr. Pitts and indeed the entire membership of the House GOP caucus from Speaker Boehner on down appear not to be worried about the Constitutional questions regarding this particular piece of legislation is because they simply don't think women have rights. The bill itself is testament to that.  And maybe they've been attending some of those closed-door corporate and Tea Party meetings featuring Supreme Court Justice Antonin Scalia, who, in an interview with California Lawyer asserted as much: In the interview Scalia said that the Constitution itself does not protect women and gay men and lesbians from discrimination.

But you didn't think you had any rights, anyway, did you?

 

The Honorable Fred Upton
Chairman
Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, DC 20515
 
Dear Chairman Upton:
 
            We are writing to urge you to refrain from bringing H.R. 358 before the full Committee.  This bill, which is an attack on a woman’s right to choose, was introduced without a valid statement of constitutional authority as required under the new House rules adopted in January.  We respectfully urge that the bill not be considered in Committee unless it is re-introduced with a proper citation of constitutional authority.
 
            At today’s markup in the Health Subcommittee, Rep. Anthony Weiner raised a point of order against consideration of H.R. 358.  Mr. Weiner quoted from House Rule XII, clause 7(c)(1), which provides:  “A bill or joint resolution may not be introduced unless the sponsor submits for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.”  Mr. Weiner then read from the statement submitted by Subcommittee Chairman Joe Pitts, the sponsor of the legislation, which stated in full:  “Congress has the power to enact this legislation pursuant to the following:  The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act.”
 
            As Mr. Weiner argued in support of his point of order, the statement submitted by Mr. Pitts does not identify any specific provision in the Constitution that authorizes Congress to enact his legislation.  Indeed, it is impossible to divine any constitutional basis for Mr. Pitts’s bill from his statement.
 
            Mr. Pitts ruled that Mr. Weiner had not stated a valid point of order, in part based on advice you provided.  You advised Mr. Pitts and the subcommittee that the only point at which an objection can be raised to validity of the constitutional statement is when the bill is introduced, not during a markup of the legislation.
 
            We do not dispute Chairman Pitts’s ruling or the parliamentary advice you gave him.  But we believe that if the Committee adheres to this policy, it will make a mockery of the rule requiring submission of a statement of constitutional authority.  According to the Parliamentarians, the chair judges only whether a constitutional statement has been submitted at the time of introduction, not whether the statement is valid.  If members cannot raise a point of order to enforce the constitutional statement rule during committee consideration of the rule, there is no point at which the rule can be enforced.
 
            Chairman Pitts’s bill is an assault on a woman’s access to abortion services.  Its apparent objective is to make it impossible for women to choose an abortion by effectively eliminating coverage for the necessary medical services.  It also calls into question the obligation of health care providers to provide the emergency services needed to save the life of a pregnant woman.  Because the bill represents a federal intrusion into the most intimate personal decisions of women and families, it is exactly the type of legislation that most needs a clear statement of Congress’s constitutional authority.
 
            While we do not dispute that you have the right to bring H.R. 358 before the full Committee, we respectfully suggest that you use your discretion not to do so.  You should ask Mr. Pitts to introduce a new bill with a valid statement of constitutional authority and use the new bill, not H.R. 358, as the vehicle for any further consideration of this matter in the Committee.  That would send a strong signal that the Committee is serious about the requirement that the constitutional basis of legislation be clearly stated before legislation can be considered in Committee.
 
            The new Republican majority adopted the constitutional statement requirement with great fanfare in January.  As the provision is now part of our rules, we believe it should be appropriately enforced – not rendered meaningless – as we approach our first full Committee markup.
 
Sincerely,
 
Henry A. Waxman
Ranking Member
 
Frank Pallone, Jr.
Ranking Member
Subcommittee on Health