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I have been pretty up front in defending Congress's right to jealously guard its turf against Executive branch encroachments (for my reasoning -- which focuses on protocol and future precedent more so than the constitution -- see my latest post and follow links backwards).

So now that following Congressional rules and honoring the intent of the Constitution are all the rage, it seems appropriate to extend the discussion into another area -- an area in which I am nothing but critical of Congress.

House Rule XIII, Section 3(d)(1), requires that all committee reports contain "a statement citing the specific powers granted to Congress in the Constitution to enact the law proposed by the bill or joint resolution."

But while Congressional leadership is intent upon guarding institutional prerogatives and the the Constitution in regards to the Jefferson FBI raid, they seem much less intent on following this simple House rule.

Indeed, all too often committee reports either have no constitutional authority statement, an incomplete constitutional authority statement (i.e. one that does not cite the specific constitutional power, as House rules require), or an inaccurate constitutional authority statement (e.g. citing the "necessary and proper" clause--Article I, Section 8, Clause 18--without citing the appropriate "foregoing power" that such a citation requires). Or some just cite the commerce clause dubiously.

Here is a perfect example: House Report #109-421 (Resources Committee) accompanying the NEOTROPICAL MIGRATORY BIRD CONSERVATION IMPROVEMENT ACT OF 2006 says "Article I, section 8 of the Constitution of the United States grants Congress the authority to enact this bill."

Along similar lines, House Report #109-341, Part 1 (Resources Committee)  accompanying the SALT CEDAR AND RUSSIAN OLIVE CONTROL DEMONSTRATION ACT, also cites the same section of the constitution.

Well, take a look at Article 1 Section 8 and try to decipher which specific section of authrorizes this. That is a pretty broad explanation.

Or how about this one, House Report #109-181 accompanying the 527 REFORM ACT OF 2005, says "Article 1, Section 4 of the U.S. Constitution grants Congress the authority to make laws governing the time, place and manner of holding Federal elections."

Article 1 Section 4 does indeed grant Congress "the authority to make laws governing the time, place and manner of holding Federal elections." But no where in that section of the Constitution do I see Congress given the power to regulate the free speech of its political opponents.

Finally, the House Committee on Appropriations proudly displays Article 1, Section 9, Clause 1 on its homepage, "No money shall be drawn from the treasury, but in consequence of appropriations made by law."

Well, fine. But why does the Appropriations Committee NEVER cite constitutional authority for specific items that they appropriate for. Are appropriations for swimming pools, Halls of Fame or Alaskan flying fish constitutional?

So what's a conservative to do? Here is a start: support legislation like Rep. John Shadegg's. Last year Shadegg introduced HR 2458, the Enumerated Powers Act. This bill would require "each Act of Congress to contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. Declares that failure to comply with this requirement shall give rise to a point of order in either House of Congress."

That sounds reasonable.

Boddington at Red State points readers to a good piece in The Hill that explains a recent House vote and how it relates to the 1994 Contract with America:

Rep. Zach Wamp (R-Tenn.), who voted for the budget in 1995 when he was a freshman but voted against it this month, said times have changed.

“It’s a different day,” he said, explaining that the attacks of Sept. 11 and other events have revealed a national energy crisis. He said that he has been preaching energy independence for years and that the budget policies from 1995 would have gone “backwards on energy independence.”

Today's Wall Street Journal Editorial argues that the Department of Justice overstepped its authority by raiding Rep. William Jefferson's office in the dead of night.

Both Republican and Democratic leaders in the House have protested, prompting media clucking that Members aren't "above the law." Having spent years trying to get Congress to live by the laws it imposes on the rest of us, we couldn't agree more. However, Congress is uniquely protected in one vital sense--in its act of legislating, under the Speech and Debate Clause of the Constitution. In the most obvious case, this protects Members as they consider legislation on the House or Senate floor. This also arguably includes papers and other material in Member offices that are related to legislating.

As I have found, this is a very unpopular position.

UPDATE: On Meet the Press this weekend, National Review's Kate O'Bierne seemed slightly out of step with the NRO editorial board. Here is the relevant clip from MTP:

But just because the Justice Department has a legal right under a, under a legal search warrant, doesn’t mean they should either do it or that they did it in the right way. There actually are legitimate separation of powers arguments, I think. And, in fact, the legislative branch is susceptible to being intimidated by the executive branch. The members had no interest in appearing to be defending an accused felon in their midst. They knew the public relations was terrible on the objections they raised, but they felt so strongly about the principle of it. And members who are uneasy about the public relations of seeming to be protecting an accused felon in their midst really reacted so negatively to a leak from the Justice Department against Speaker Hastert a couple of days later, falsely claiming that he was the target of an investigation, part of the Abramoff scandal, that they really rallied to the speaker on those grounds. And it was reminded to them that the same people capable of leaking in retaliation are rummaging through congressional offices.

MR. RUSSERT: How much anger, frustration is there amongst House, Senate Republicans with the Bush White house?

MS. O’BEIRNE: There’s a backdrop of frustration. So some saw this as maybe the latest example of showing a lack of regard for legislative prerogatives. I mean, it is an administration that has jealously guarded its own prerogatives, it’s own executive privileges. You think they would have been more sensitive to a co-equal branch’s view of its prerogatives.

This is a much different, more measured tone than that of the NRO editorial that concluded:

Last week the Senate passed their version of immigration reform. The amnesty-containing bill contained hundreds and hundreds of pages of text which apparently went mostly unread. How else could you explain senators voting for legislation containing provisions like the ones highlighted by Wes Pruden today in the Washington Times:

Under the Senate bill, if an illegal alien applies for amnesty, the U.S. government cannot use any of the information for any other purpose. If an applicant in a burst of brutal honesty admits that he is Osama bin Laden's cousin, or a member of al Qaeda, the government cannot use this information for national-security purposes. If a federal agent, in a burst of patriotism, sends the information on to the FBI or Homeland Security, anyway, he is subject to a $10,000 fine (five times what the alien has to pay to get amnesty). Employers of illegals get a pardon for all taxes that went uncollected in the past.

Over the coming weeks and months, expect many more revelations like this to come out as people have time to go over the bill in more detail. 

So the House of Representatives is in lockdown mode after reports of gunshots being heard surfaced this morning. Staffers and all in the building have been ordered to stay put. A short time ago, Capitol Hill police sent out an email to all House staffers with the words "Update - Important Instructions for the Rayburn HOB" in the subject line.

The email reads (I have X'ed out sensitive information):

The Capitol Police continue to investigate the report of gunfire in the
Rayburn HOB.

1. If you have not done so, lock your office doors.

2. The Capitol Police will soon commence a search of the Rayburn HOB floor by floor.

3. During the search, the police officers will knock XX times on each office door, announce "United States Capitol Police", knock XX additional times, and then voice the code word "XXXXX".

4. Open your office doors for the police and cooperate with all police
instructions.

5. All occupants should remain in their offices until the Capitol Police
announce that it is safe to exit.

6. If there are special concerns about the identity of the person knocking on your door and you need to verify their identity, call (202) 224-xxxx.

Let's hope the would-be gunman doesn't have internet access.

Oooooops!!

UPDATE: Boddington at Red State got the same email.

Last night the Senate finished debating the immigration reform bill. The legislation that contained amnesty for millions passed despite the better judgement of a majority of the Republican Party.

Alabama Senator Jeff Sessions was a hero during debate on this bill. Now that debate is done, it is interesting to note how often the Jeff Sessions position -- the conservative position -- garnered a majority of Republican votes but lost the overall vote. This further illustrates that this is a bill made of by and for the moderate/liberal caucus in the Senate.

On Senate vote 121 to secure the borders 64.7 percent of the R's voted with Sessions, but the moderate/liberal caucus prevailed.

On Senate vote 127 regarding earned citizenship the Sessions position garnered 56.4 percent of the Republican vote but the moderate/liberal caucus prevailed.

On Senate vote 128 on guest worker status the Sessions position received 85.5 percent Republican support -- this was enough to just barely prevail (by 2 votes) over the moderate/liberal caucus.

On Senate vote 129 on guest worker status Sessions' position received 74.5 percent of Republicans' support but failed to prevail of the moderate/liberal caucus.

On Senate vote 130 on Social Security 80 percent support for the Sessions' position was not enough to overcome the moderate/liberal caucus.

On Senate vote 132 gutting the Inhofe English language amendment Sessions' position received 73.6 percent of R support but still got rolled by the moderate/liberal caucus.

On Senate vote 135 regarding the temporary worker program 64 percent of R's voted with Sessions. The Sessions position was again rolled by the moderate/liberal caucus.

On Senate vote 136 regarding agriculture workers' wages 80.8 percent of Republicans voted with Sessions. The Sessions position loses again.

On Senate vote 140 regarding an employer verification program Sessions' position drew support from 68.5 percent of his fellow Republicans while again losing the overall vote.

On Senate vote 149 regarding "blue card" modification, Sessions' position was rolled by the moderate/liberal coalition despite receiving 60.4 percent of the votes from Republicans.

And of course we know whose position prevailed on the final passage vote.

Moments ago...

Voting on Hayden nomination now.

UPDATE: Hayden is confirmed 78-15

UPDATE: Dems who voted for cloture last night on the Kavanaugh nomination: Biden, Byrd, Carper, Feinstein, Kohl, Landireu, Lieberman, Lincoln, Nelson, Nelson, Obama, Pryor

Dems who voted for confirmation: Byrd, Carper, Landriue, Nelson (NE)

Senator Rick Santorum hits the nail on the head with this piece about the Senate immigration reform bill:

Instead of deterring illegal behavior, S. 2611 rewards illegal immigrants by putting our current elderly beneficiaries, who paid into the Social Security system for decades in order to collect the benefits they receive today, further at risk in an already stretched system. Additionally, Robert Rector from the Heritage Foundation conservatively estimates that this bill could increase welfare costs by some $11.4 billion per year.

The Senate will vote on final passage of the immigration reform bill this evening. Senator John Cornyn, for one, will vote against the bill. In a statement released today Cornyn said:

Cornyn is right to be worried. We are indeed repeating history.

The rest of Cornyn's statement is in the extended section

President Bush has ordered the documents obtained by FBI agents in the raid of Rep. Jefferson's office to be sealed for 45 days.

Republicans had better figure out this communication nightmare very quickly. I have clearly been sympathetic to the arguments about congressional prerogatives, but this is a bad move. Hastert and company need to figure out a way to get passed this and ensure that Jefferson is prosecuted to the full extent of the law in a timely fashion.

A month and a half delay will not do.

...and me apparently. My column this morning drew much criticism from Townhall readers. As I have reread my column I concede that I was perhaps a bit too nuanced -- or maybe more accurately, too muddled. Many readers came away from my column thinking I was sticking up for Rep. Jefferson's noncompliance with a subpoena. Others thought that I was sticking up for what they perceive to be a Congress that thinks it is above the rule of law.

I intended neither. Jefferson's slimy dealings should be dealt with and Congress is not above the law. I think congressmen should abide with the first plank of the 1994 Contract with America in which Republicans promised that they would abide by all the laws and rules that everyday Americans abide by.

My point on this whole Jefferson FBI raid fiasco is simple: Congress has every right to jealously guard its time honored prerogatives as do the other co-equal branches of government. A healthy friction between the executive and legislative branch was intended by the Framers of the Constitution.

It is right and yes, principled, for members of Congress to be concerned about an executive branch raid on the Congress. Are there some members who will make this argument on unprincipled grounds hoping to save their own skin? Sure...but that does not mean there is not a principled argument to be made.

This has never happened in 219 years. Indeed, during that time the executive and legislative branches have always found ways to resolve such issues without resorting to brute force. That is proper.

I don't know about you, but I am uncomfortable with a federal government whose co-equal branches are conducting unannounced raids on one another. That just doesn't seem right.

There is also a difference between individuals and institutions. Rep. Jefferson is an individual who should be entitled to no special treatment. But Congressional property is part of a co-equal branch of government, an institution.

Also, it is not irrelevant to note that this whole situation could have easily been resolved with a simple phone call to Capitol police, the Speaker's office or House general counsel. Does anybody really believe that the Speaker's office would not have let the FBI go after a Democrat for a corruption charge?

Now that the political mess has been made, there seems to be only one way out for Speaker Hastert. He should convene congressional leaders and top DOJ officials to establish a protocol for future situations like this. The protocol should be acceptable to DOJ and congress and people should start playing nice.

Speaking of playing nice, does it not seem at all fishy to anyone that the day after Hastert made an issue about the FBI raid DOJ anonymously leaked a story to ABC news that Hastert was the subject of an investigation? Soon thereafter DOJ officially disputed the leak but the damage had been done. That is playing dirty: you mess with us and we will get you back. Of course this is speculation...but I digress...

Finally, a word of advice to congressional leaders: Next time an issue like this comes up, defend traditional legislative branch prerogatives, but don't hold a press conference for all the world to see in which you appear to legitimate Americans' already prevelant concerns about a Congress that considers itself above the law. Instead, call the Attorney General and get the President on the phone. Have a stern, serious and off-the-record conversation.

There may have been no worse way to handle this issue politically. And as a consequence, the real argument for respect amongst the co-equal branches of government has been lost.

I did not catch it, but a friend on the Hill tells me that Senator John McCain this morning took the floor to complain about amendments being offered to the immigration reform bill by conservatives. Apparently McCain joined Harry Reid by making a ridiculous insinuation: what’s next, he asked, an amendment to make them “ride on the back of the bus?”

Lame and pathetic... 

Next week the House and Senate will be gone for Memorial Day recess. When they return the week of June 5th the Senate is slated to consider Senator Daniel Akaka's Native Hawaiian Government Reorganization Act.

As has been noted many times before, Akaka's bill would create an extra-constitutional race-based governing entity.

Below are some links to relevant information about the topic.

Read:

Why Congress must reject race based government for native Hawaiians

What does the United States owe to Native Hawaiians?

How do Hawaiians feel about the Akaka bill?

Most Hawaiians oppose Akaka

Why all Americans should oppose race-based governing

NOTE: Senator Lamar Alexander will headline the following event tomorrow: An unconstitutional act is back: the return of the Native Hawaiian Sovereignty Act

The Club for Growth is racking up primary victories. Great stuff...Chris Cillizza reports:

The Washington, D.C.-based political organization, which is dedicated to supporting laissez faire capitalism, has scored a slew of GOP primary victories so far this month. It began in Ohio on May 2 where the group backed state Sen. Jim Jordan in the open 4th District House race and Secretary of State Ken Blackwell in the governor's race.

A week later, state Sen. Adrian Smith -- the Club-endorsed candidate -- won a crowded Republican primary in the western Nebraska 3rd District. On May 16, Club for Growth President Pat Toomey and the club's Pennsylvania chapter helped organize conservatives to vote against GOP state legislators who had approved a pay raise for themselves. Seventeen legislators members wound up losing their primary races, 13 of whom were Republicans.

Then, last night, another Club-backed candidate, state Rep. Bill Sali, won a six-way GOP primary to claim the nomination in Idaho's 1st District.

This, no doubt, will be an unpopular column. Today I argue that despite the politics of the situation, Congressional leaders who are demanding the FBI return documents obtained from the raid of Rep. Jefferson's office are doing so because of principle. I do not wholeheartedly condon their constitutional arguments because I am not qualified to do so. But I do believe that an argument that is made because of principle, no matter how politically tone deaf, deserves to be heard.

Many believe GOP leadership's argument is terrible politics...and it is. It makes Americans who are already rightly suspicious of Congres even more so. It makes Congress look as if it considers itself above the law. But that is not the issue.

The simple fact is that this who affair could have been avoided with one heads up call to the House counsel or to Capitol police.

Also worth considering is the precedent this sets. Do we want a future administration who may be obsessed with political agendas to be able to raid political opponents offices willy nilly? Yes, I know a judge granted a warrant. But there are lots of judges out there that will grant a warrant...this is worth thinking about.