This is one area in which Colorado could take a lesson from our sister state to the north, Montana.
Montana has a long history of what used to be “prairie socialism” and often has made bad fiscal decisions. But on this issue Montanans got it right.
I was in the legislative galleries in Helena last Friday, when the state stepped back from the brink.
Democrats and some Republicans were pushing for the state to join the Medicaid expansion, enticed by “free federal money.” So they amended a bill designed to keep the state free from the expansion to one chaining the state to the expansion.
The rules of the state house of representatives generally provide that when the purpose of a bill is changed, it should go back to committee for review. So in a courageous move guaranteed to irritate the state’s “opinion leaders,” Speaker of the House Mark Blasdel decided to just that.
Advocates of the expansion immediately moved to appeal the Speaker’s ruling. All of us in the House chamber held our breaths to see what the roll call vote would be. At the end, the motion to overrule lost—but by the closest margin possible: 50 for, 50 against. Then the bill was physically transmitted to the committee.
At least one, and possibly two, Democrats claimed to have pushed the wrong button while voting, but some Republicans may have made off-setting errors. Anyway, advocates of the extension therefore pushed for a second vote, while hospital lobbyists—eager to pad their employers’ pockets by throwing more people into government dependency—vigorously worked on lawmakers, trying to flip some to their cause. They actually wound up losing people: The second vote to reverse Speaker Blasdell lost 48-52.
Some in the Montana political establishment can be ruthless in finding ways to overrule the state legislature when it makes a fiscally conservative decision. Montana lawmakers have to be careful they are not overruled this time.
For example, in the 1990s, the state House rejected federal funding for a controversial education program. Instead of respecting the legislative will, the governor and superintendent of public instruction decided to thwart it. They arranged for the money to bypass state government and go directly from the feds to local school bureaucrats.
A little later in the decade, Montana lawmakers rejected CHIP, one of those federal health care programs that are (1) promoted as improving access to care but instead (2) always make care more expensive and less accessible. So the Montana state auditor (insurance commissioner) decided to violate a central canon of our constitutional government: He decided, as an executive branch officer, to invade the sole right of the legislature to appropriate money.
First, he threatened insurance companies with prosecution for allegedly breaking regulations. Next, he dropped the cases when the insurance companies handed over large cash payments. Finally, he used the extorted funds to erect the CHIP program himself.
Voila! more dependency, less affordable care, and a new spending constituency.
Montana lawmakers must ensure they are not overridden this time. But if their decision holds, they will have made an important step toward more fiscal sanity and physical health.
Colorado needs to follow suit.
The claim that the Court has a conservative majority is certainly widespread. Googling the phrase “conservative supreme court” turned up over 38 million hits. The more specific phrase, “conservative majority supreme court” yielded 3.75 million. The New York Times has even editorialized that “the aggressiveness of the majority’s conservatism” actually renders the court “radical.”
A careful reading of a study by the Times itself shows the latter claim to be pure bunk. Although the headline affixed to the study suggested that it found the Court to be conservative, that headline was somewhat misleading. The study’s findings were much less definitive. It did conclude that (1) “the recent shift to the right is modest,” (2) “the court’s decisions have hardly been uniformly conservative,” and (3) by contemporary public standards the court is centrist, not conservative.
Careful analysis of the Times study by Professor Jonathan Adler turned up more. Professor Adler demonstrated that the study actually found that the current justices are restrained, not necessarily conservative. They form, in point of fact, the most restrained bench in decades. That means they don’t change the law much one way or another.
Now, you might think that “Restrained = Conservative.” But think again: When the Court leaves existing constitutional jurisprudence untouched, it protects constitutional jurisprudence that is mostly liberal. You see, most existing constitutional jurisprudence is the product of the “progressive” justices who dominated the Court for the greater part of the 20th century. That jurisprudence often disregarded established methods of interpretation, overruled established doctrines, authorized huge expansions of federal power, and re-wrote important parts of the Constitution to serve “progressive” ends. When the Court leaves “progressive” jurisprudence untouched, the results are mostly “progressive” decisions.
Ironically, some of the cases liberals complain most about today—such as the Citizens United ruling on corporate campaign spending—are merely applications of rules formulated in prior years by “progressive” majorities.
Not only has the current Court refused to cashier most of this liberal jurisprudence, but it sometimes has expanded it. A good example is Lawrence v. Texas, a decision authored by Justice Kennedy. Lawrence ruled that anti-sodomy laws violated the Due Process Clause of the Fourteenth Amendment, although such laws had been part of the western tradition for 3000 years. (Needless to say, there is no evidence the Fourteenth Amendment had anything to say on the subject. And, just to be clear, I do not personally favor anti-sodomy laws; that is a different question from constitutionality, however.)
The Times editorial asserting that the present Court is “radical” was triggered by the conclusion of five justices that Obamacare’s individual mandate was not justified by the Commerce or Necessary and Proper Clauses. But that was not even a conservative conclusion, much less a radical one. The five justices called into question no current congressional power. They did not reverse a single liberal holding—not even the rogue 1944 decision that insurance is “commerce.” They merely stated that the Commerce and Necessary and Proper Clauses did not authorize a new congressional power. Even more to the point, the Court ultimately upheld the exercise of that new power by pretending that the mandate was an indirect tax.
Among the Supreme Court’s membership, a plurality (four of nine) are fairly reliable liberals. Only one, Clarence Thomas, is “conservative” in the sense that he consistently interprets the Constitution according to the rules generally applied during the Constitution’s first 150 years. Justice Scalia usually does so as well—but not always: In Gonzales v. Raich, he joined a liberal majority that extended the congressional Commerce Power to window-box plants.
Justice Kennedy frequently sides with the four liberals. Chief Justice Roberts, as the Obamacare case illustrates, usually protects the status quo and the inflated pretensions of Congress. Justice Alito, while more conservative than Roberts, has been mostly unwilling to reverse liberal constitutional jurisprudence.
Admittedly, the present Supreme Court is more restrained than the activist benches of the mid-20th century. Perhaps it would be fair to characterize it as centrist or moderate.
But conservative? Not hardly.
During the Obamacare case before the Supreme Court, the Independence Institute argued that the law’s provisions forcing the states to expand Medicaid were unconstitutional. Neither the Constitution nor case law, we pointed out, permits the federal government to use federal spending programs to coerce the states.
Seven of the nine justices agreed with us, essentially adopting the arguments advanced in our brief.
As a result, the states may consider freely whether or not to accept additional federal funds for the Medicaid expansion. Accepting federal funds might seem to bring the states short-term fiscal benefits. But the fiscal risks of doing so are very great—perhaps eventual bankruptcy.
Dr. Linda Gorman, an economist, is director of the Independence Institute’s Health Care Policy Center. In this article, she explains in detail why state acceptance of the Obamacare Medicaid expansion would be a serious mistake.
To justify the huge growth of federal regulations over the last few decades, lawyers and judges frequently cite the Constitution’s Necessary and Proper Clause (I-8-18). But is that provision really broad enough to authorize what they claim it authorizes?
This little essay focuses on the meaning of the word “necessary.” Early legal documents—used by English lawyers, but written in Latin— offer some clues about what that word was intended to mean.
The Origins of the Necessary and Proper Clause, a book published in 2010 by Cambridge University Press, was authored by four scholars of differing political views—of whom I was one. The research summarized in the book found that the “necessary” portion of the Clause did not actually grant Congress additional authority. It merely assured the reader that the Constitution, unlike the Articles of Confederation, gave Congress powers “incidental” to those listed. Chief Justice Roberts apparently followed that research in the portion of his Obamacare decision in which he found that the Necessary and Proper Clause did not authorize the federal health care law.
During the Founding Era (and today also, in most contexts), an incidental power was one that met the following requirements:
* It was subsidiary to—less important than—a listed or “principal” power. Founding-Era lawyers said an incidental power had to be less “worthy” than the principal.
* It was either
(i) a customary way of exercising the listed power or
(ii) reasonably necessary to its exercise. Founding-Era lawyers summarized “reasonably necessity” by saying that an incidental power had to be one that, if absent, would subject exercise of the principal power to “great prejudice.”
Let’s consider an example: The Constitution grants Congress authority to regulate “Commerce . . . among the several States.” That is a principal power. This gives Congress authority over interstate trade among merchants together with a few associated activities, such as commercial finance, cargo insurance, international brokerage, and navigation.
But today, Congress also regulates manufacturing in detail, claiming that doing so is “incidental” to the regulation of interstate commerce. But that claim really doesn’t wash, because manufacturing is at least as important an economic activity (as “worthy” as) as interstate trade among merchants. So it cannot be subsidiary to commerce. (On the other hand, Congress may regulate some aspects of manufacturing that are subsidiary to and closely connected to commerce, such as the labeling of goods about to be sent across state lines.)
The meaning of “necessary” as embracing only subsidiary powers is strange to us today. But that’s the way Eighteenth Century legal documents used the term.
Why so? Well, “necessary and proper”-type provisions were based on earlier instruments composed when English lawyers wrote most legal documents in Latin. For instance, a 1724 book of legal forms contained this forerunner of the Necessary and Proper Clause:
“ad facienda exsequenda et expediendia omnia et singula et necessaria fuerint aut opportuna. . . . ”
(I’ve spelled out the phrase’s abbreviations.)
Notice the words necessaria and opportuna, the neuter plural forms of necessarius (necessary) and opportunus (proper).
In Latin, an important meaning of necessarius is a person connected to you. It can refer to a close relative, associate, and in particular to a dependent or servant. The Founders had virtually all studied Latin as part of their basic education, and as constitutional historian Forrest McDonald points out, there are many echos of Latin usage in the Constitution.
So you can see how the term necessaria—“necessary”— could come to refer to a power subsidiary and connected to larger power.
Filed under: All Postings, Article V Convention, ObamaCare, The Founding
The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.
Obviously, that decades-long strategy has failed—spectacularly.
They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.
The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.
There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.
Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.
Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.
The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.
This provision was designed explicitly to enable the states to bypass federal politicians.
Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.
Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.
Yesterday’s Parade Magazine, the Sunday insert, featured a cover article on former Supreme Court Justice Sandra Day O’Connor. It was a terrific choice: Justice O’Connor has lived an inspirational life.
But Parade essentially muffed the job. While displaying its eagerness to celebrate some of her more liberal views, the article entirely overlooked Justice O’Connor’s truly historic contribution: Her role in resuscitating federalism (“states’ rights”) in Supreme Court jurisprudence.
Unlike most of the justices appointed to the modern Supreme Court, O’Connor brought with her solid experience in all three branches of state government. She had served in Arizona’s executive branch as an assistant attorney general, in the legislature as a state senator and majority leader, and in the judiciary both as a trial and appellate judge.
This practical experience and appreciation for federalism showed in her opinions. In 1987, Justice O’Connor dissented in South Dakota v. Dole, where the Court upheld a federal law invading traditional state prerogatives. (The law threatened to withhold a small fraction of highway funds from any state that did not raise its drinking age to 21.) Although she lost that case, her sharp dissent gave bite to critical concessions by the Court’s majority: (1) The federal spending power has limits, (2) conditions on federal funding must be related to the purpose of the program, and (3) withdrawal of federal funds cannot be so severe as to be “coercive.”
The Court enforced those limits in 2012 when it voided, by a 7-2 majority, Obamacare’s imposition of coercive Medicaid mandates on the states.
In South Dakota v. Dole, O’Connor and her fellow Arizonan and Stanford Law School classmate, Justice Rehnquist, were on opposite sides. That was not to remain so for long.
In a string of later federalism decisions, Rehnquist flipped to her side, and they carried the majority of the Court with them. The famous cases of Lopez, Morrison, Alden and others all owe something to her influence.
In 1992, O’Connor led a 6-3 majority what proved to be a trend-setting case, and almost certainly the most important pronouncement of her career (although Parade Magazine didn’t think it worth a mention). The case was New York v. United States.
New York v. United States established, or rather re-established, the principle that states are independent sovereigns in the federal system—and that Congress cannot “commandeer” them in service of its own priorties.
In arguing the matter, the federal government contended that because New York had cooperated with the unconstitutional law, New York couldn’t challenge it. O’Connor’s response ranks as one of the Supreme Court’s greatest pronouncements ever on the role of the states in the federal system:
The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” . . . . “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” . . . Where Congress exceeds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the “consent” of state officials.
Nearly 20 years later, in the 2011 case of Bond v. United States, the Court reaffirmed those words of Justice O’Connor. The vote for doing so was unanimous.
For a good illustration of what other authors can teach us, read on.
During the 1787-90 ratification debates over the Constitution, much more than The Federalist was written to illustrate the document’s meaning.
True, The Federalist is among the greatest works of political science ever composed. But The Federalist represents the views only of three (admittedly very influential) authors among the scores, perhaps hundreds, who published on the Constitution.
The Federalist would not even be my first choice for introducing students to the Constitution’s meaning. (That would be the essays of Tench Coxe.) People found The Federalist hard going, which limited its influence. The Federalist may have been more important as a “talking points” manual for the Constitution’s advocates than for its direct influence on the ratifying public.
Also, you can learn a lot by reading other things. Consider the “Letters from New York” that appeared in the Connecticut Journal newspaper on October 24 and 31, 1787, just as Connecticut was considering whether to ratify. The writer, whose identity is unknown, was promoting ratification. His or her two letters explain his or her view of the philosophy behind the Constitution and the meaning of important clauses.
I’ve provided a copy of the letters here. They are taken from the third volume of the Wisconsin Historical Society’s Documentary History of the Ratification of the Constitution. Following are four of the author’s insights:
First: The author accepts that the Constitution is a direct grant of power from the people to the new federal government, rather than a compact among the states. (As I explain in my book, The Original Constitution, this was the dominant, although not universal, view at the time.) Thus, in discussing the difference between the prior regime and the Constitution, the author writes:
There is not a single power granted to the Congress, by this Constitution, but what the people have ever granted to the assemblies of the states, and there is no privilege held by the people, with respect to the choice of their legislature and executive authority, but what is secured to them by this Constitution. The whole of the difference consists in this: part of the power granted by the people to the governor and assemblies of the states will be, by this Constitution, taken out of their hands and placed in the President of the United States and the Congress. The sole question, therefore, is which would answer the purposes of the people of the United States the best?
Second: As did James Madison in The Federalist, the author assures the public that the powers of the federal government are sharply delineated: “The legislative and executive powers prescribed by this Constitution are clearly defined, judiciously limited and constitutionally settled.”
This conflicts with the claims of many modern liberals (such as Justice Ginsburg, in the Obamacare case) that the Constitution’s Commerce Power granted the vague and expansive authority that would have been granted under the Virginia Plan. It also conflicts with the claims of many conservatives and some liberals that the President’s “executive power” is limited only by exceptions carved into it by Article II. (For a discussion of this subject, see my article here.)
Third: The “Letters from New York” re-affirm that the “militia”—and by implication the right to keep and bear arms—is very broad. The author writes, “The militia comprehends all the male inhabitants from sixteen to sixty years of age. . . .”
Fourth: The Letters confirm another point I make in The Original Constitution: That the nine-state threshold for adopting (and proposing amendments to) the Constitution was based on the belief that even the smallest nine states would contain a majority of the people:
Omitting many other excellent parts of this Constitution, I will just make one observation on the 7th Article, which says: “The ratification of nine states shall be sufficient for the establishment of this constitution, between the states so ratifying the same,” which I do not think by any means incompatible with the 13th Article of our Confederation. The will of a majority of the people hath always been considered by the people of this country as sufficient to determine and bind the minority; and upon this principle the article alluded to ought to be construed.
In NFIB v. Sebelius (the Obamacare decision) a 7-2 majority voided that part of the law that required states to join the Medicaid expansion or lose all (not just a part) of their Medicaid funds. The court treated the federal-state Medicaid relationship as a contract. It essentially held that while the states had granted the federal government power to make changes in the program, any changes the feds imposed had to be reasonable and foreseeable.
Former Solicitor-General Charles Fried has attacked this part of the decision on Scotus Blog, referring to it as“The Court’s Bad Contract Law:” He compares the states’ position to
“a commercial tenant who has a lease in commercial premises in which he has invested heavily and where he has lots of good will (e.g., a neighborhood restaurant). The lease is terminable after five years on sixty days’ notice and the lessor insists on a greatly increased rent. I submit that the tenant’s complaint that this constituted duress would get nowhere.”
But this is a bad analogy and the court’s reasoning was actually very good contract law.
There are certain principles that cut across the field of contracts and other “private law” subjects—subjects such as property, mineral law, associations, and partnership. These principles govern relationships where (1) the parties are locked together in a common enterprise for mutual benefit, and (2) some of the participants have granted to others the authority to make decisions affecting all. Examples include:
* The partnership or joint venture, where some of the partners or venturers have given one of their number authority to make business decisions.
* The homeowners association or mutual benefit association that receives power to make rules for the members.
* Joint landowners, where one holds the “executive right”—that is, authority to sign oil and gas leases on behalf of all.
* The relationship between a landowner and the company pumping oil from his land (the operator), where the landowner has authorized the operator to make decisions affecting the landowner’s royalties.
Now, the state-federal Medicaid program is clearly a common enterprise of this kind. It is jointly funded and jointly operated for a common purpose, and as part of the deal the states granted the federal government power to make program changes.
Early in my legal career, I practiced, wrote, and taught mostly private law subjects like contracts, property, real estate transactions, commercial law, and trusts. (Necessary knowledge for understanding the Founders’ Constitution, by the way.) One of my legal treatises, Modern Law of Deeds to Real Property (Little, Brown and Co., 1992) contains a theoretical chapter that summarizes the law of common enterprises.
In a common enterprise, the grantee of a power affecting the enterprise does not have authority to use the power however he wishes, even if the literal terms of the grant seem to permit it. The courts impose limitations. Depending on the specific area of the law being applied (contracts, oil and gas, partnership, agency, etc.), sometimes these limitations are referred to as “fiduciary,” sometimes as duties of “utmost good faith,” and sometimes as limiting the power to what is foreseeable or reasonable. But whatever called, they amount to pretty much the same thing.
The restrictions on a common enterprise power-holder fall short of true fiduciary duties, but are more exacting than what is required of an arms-length relationship, such as most commercial leases.
A primary restriction is that the power-holder must use his authority so as to preserve the essential bargain for all parties. He may not radically change what the parties bargained for initially (or would have bargained for, given the chance). This standard is precisely what the court applied in NFIB v. Sebelius.
There is another aspect of contract and property law that, while not at all necessary to the Supreme Court’s position, justifies it further: Power grants from sovereigns (in this case the states) are strictly construed in favor of the sovereign grantor. See Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420 (1837); United States v. Brown, 552 F.2d 817 (8th Cir.), cert. denied, 431 U.S. 949 (1977). Thus, doubts about the scope of the power granted by the states to the federal government are properly resolved in favor of the states.
Little-noticed amid the commentary on the Supreme Court’s health care decision is the decision’s blow to congressional efforts to federalize medical malpractice law—a potential element of the Republican plan to “replace Obamacare.”
Medical malpractice cases, like most areas of civil justice, traditionally are judged by state courts under state law rather than by the national government. This is because, as American Founders such as Alexander Hamilton and John Marshall explained, the Constitution reserves most such matters to state control.
Yet the current U.S. House of Representatives—led by some who otherwise assail federal overreaching—have twice passed H.R. 5, a bill that would largely transfer control over medical malpractice lawsuits to the federal government. Fortunately, the measure has not passed the Senate. It is, however, being touted as part of the GOP plan to “replace” Obamacare.
Under Title 1 of H.R. 5 (the so-called HEALTH ACT), Congress would assume expansive authority over state court procedures. The bill requires state judges and juries to adopt federal standards of proof, federal damage rules, federally-mandated standards of guilt, federal statutes of limitations, and a federal schedule for attorneys’ fees that overrides agreements between attorney and client. H.R. 5 also dictates that certain legal information be withheld from juries. A portion of the bill with the Orwellian title of “State Flexibility and Protection of States’ Rights” provides that the measure overrides state law, with only minimal concessions.
Advocates of H.R. 5 claim the Constitution gives Congress authority to adopt the measure under Congress’s Interstate Commerce Power. This always has been a dubious argument, but has become more dubious in light of comments and holdings in the Supreme Court’s health care case.
The Interstate Commerce Power stems from two of the Constitution’s grants of authority to Congress. The first, called the Commerce Clause, gives Congress power to regulate interstate commerce. The second, called the Necessary and Proper Clause, grants authority to make laws “necessary and proper” for carrying out other powers, including the power to regulate interstate commerce. A close reading of modern Supreme Court cases shows that congressional authority to govern trade and insurance derives from the Commerce Clause, but that most of its other economic power (including regulating health care) comes from the Necessary and Proper Clause.
But as the Supreme Court has emphasized repeatedly, there are limits to Congress’s authority. Chief Justice Roberts’ health care opinion strongly suggests that the Necessary and Proper Clause is simply not broad enough to include the kind of control over state courts that H.R. 5 would impose.
In his opinion for the Court, Roberts upheld as a tax the individual insurance mandate. But he also agreed with a majority of the court that the mandate could not be justified under the Commerce Power. One of his key observations was that (in accordance with the Founders’ understanding) the Necessary and Proper Clause does not grant power by itself, but merely clarifies how the Constitution should be read. Roberts further explained that the Necessary and Proper Clause does not permit Congress to exercise of any “‘great substantive and independent power[s]’ beyond those specifically enumerated. . . .”
Among the “great substantive and independent powers” denied to the federal government is control over the branches of state government. Roberts wrote that laws that “undermine the structure of government established by the Constitution . . . are not ‘consist[ent] with the letter and spirit of the constitution’” and “are not ‘proper [means] for carrying into Execution’ Congress’s enumerated powers.”
In the Medicaid portion of Roberts’ opinion—in which he spoke for a seven-justice majority—he also emphasized that federal laws are void if they “undermine the status of the States as independent sovereigns in our federal system.” That principle, he said, has led the Supreme Court “to strike down federal legislation that commandeers a State’s legislative or administrative apparatus for federal purposes.” Among the cases he cited in this portion of his opinion was Alden v. Maine (1999), a prominent decision in which the Supreme Court voided a federal law ordering state courts to take jurisdiction over certain kinds of cases.
It seems clear that the Supreme Court will not tolerate efforts by Congress to dictate rules and procedures to state courts. In light of this new information, the sponsors of H.R. 5 should honor their oath to support the Constitution by promptly withdrawing the bill.