Deficit hawks' rallying cry: the 10th Amendment

WASHINGTON — Congress could easily get federal spending under control if it would simply follow the Constitution, Rep. Scott Garrett says.

And spending on public education and local transportation projects are just two of the unconstitutional programs Garrett cited when asked for examples.

"I've asked this question to prior secretaries of education when they appeared before me in various committees, 'What is your constitutional authority to do what you're doing?' And they will simply say Congress authorizes us to do so. Congress can't authorize something that is not in the Constitution," said Garrett, R-N.J.

Garrett is part of a movement, cheered by the tea party and derided as "tenthers" by critics, who argue that a strict reading of the 10th Amendment prohibits much of what the federal government does every day. The amendment says that states retain any powers not specifically given to the United States government, the so-called enumerated powers such as declaring war, establishing post offices and coining money.

Arguments over states' rights versus federal power stretch back to the country's founding, but have gained new attention in the fight over health-care reform. A federal judge in Virginia has ruled that Congress did not have the constitutional authority to mandate that everyone who can afford it buy health insurance starting in 2014. The Obama administration is appealing.

Republicans will recognize the role that advocates for a strict constitutional reading played in their winning control of the House when new members are sworn in on Wednesday. Along with reading the full Constitution on the House floor for the first time ever, House Republicans have proposed a new rule requiring all legislation to contain a statement describing what part of the Constitution provides the authority to act. Garrett has advocated for an even tougher rule.

Critics say the argument Garrett and other "tenthers" make was settled more than two centuries ago during George Washington's administration, when then-Rep. James Madison argued Washington did not have the authority to sign a banking bill and Washington overruled him. Madison himself later signed another banking bill as president.

Conservatives are reviving the dispute to delegitimize laws they don't like, said Ian Millhiser, a constitutional analyst with the liberal think tank Center for American Progress.

"Scott Garrett is nuts," Millhiser said. "I would advise him to actually read the Constitution before he pretends to know what's in it."

Millhiser argued that Article 1 of the Constitution, which lays out the powers of the government, includes a broad provision allowing for raising taxes and spending money for the "general welfare of the United States."

"If Congress determines funding education is a way to provide for the general welfare, it has the power," Millhiser said. "The Constitution says that when the government spends money, it can spend money on pretty much whatever it wants for the purpose of providing for the general welfare."

The commerce clause of Article 1 also gives Congress broad power to regulate matters that affect business between the states, he said.

Garrett is not calling for the immediate repeal of programs he considers unconstitutional, but he does believe requiring a statement of constitutional authority in legislation will halt any expansion. He had called for a stricter constitutional-authority rule than the House leadership has proposed. Under his proposal, invoking the general-welfare clause alone would not have been a sufficient justification.

"He will continue to work with all interested parties to ensure the final House rule package includes a rule that would require all legislation to appropriately cite an enumerated power in the Constitution," spokesman Ben Veghte said.

Millhiser doubted new House rules would change much, however.

"They think if they change the rules so people have to articulate reasons, they'll suddenly realize they're doing something wrong. But they're not going to do that," he said.

It is healthy and appropriate to debate the limits of congressional power, said Ross Baker, a political scientist at Rutgers University who has written a book about the relationship between Congress and the courts titled "Strangers on a Hill."

"Congress has a tendency whenever there's an outcry about something to make it a federal case," Baker said. "I sometimes think the constitutional basis, particularly under the commerce clause, is pretty tenuous."

But the Constitution says the branch of government that decides the scope of authority is the judiciary, said Mark Alexander, a Princeton University constitutional scholar and adviser to President Obama.

"The question of how far the federal government can go is ultimately a decision of courts. Even if Congress says, 'This is OK for us to do,' that doesn't mean it is OK. It's up to the courts to say that," he said.