Constitutionality of Legislation
Is there any type of formal procedure within Congress that evaluates the constitutionality of proposed legislation?
There is no formal procedure on behalf of Congress overall to determine the constitutionality of proposed bills.
During floor debate in both the House and Senate, the constitutionality of a proposal is often brought up as a debating point by both proponents and opponents when they feel it is applicable. Raising the question of constitutionality may or may not prove to be persuasive in the debate.
In the Senate, Senators may raise an actual point of order that an amendment or a provision of a bill is unconstitutional. Senate rules require the Presiding Officer to put this question to the Senate for a vote, and not to rule directly on the question of constitutionality. The Senate's collective judgment by its vote of the moment decides whether or not the amendment or provision is constitutional in the view of the majority of the Senate at that time.
The House has no similar procedure. In essence, by voting on the adoption of an amendment or voting on final passage of a bill whose constitutionality has been challenged in debate, they are rendering a judgment on constitutionality. It is the rare Member who would vote yea on a bill they sincerely thought was unconstitutional.
Since a majority vote alone decides the opinion of each chamber on the question of constitutionality of a proposal, it is conceivable that the House may decide a provision is unconstitutional, while the Senate decides the opposite. One chamber will have to cede to the opinion of the other in order to produce agreement on a final version to send to the President.
The ultimate barometer of constitutionality of laws enacted by Congress lies with the courts, and ultimately with the Supreme Court. Bills enacted by Congress and signed into law by the President may have their constitutionality challenged in the courts. And if a law is so challenged, it is the Supreme Court that has the last word on deciding constitutionality.