Wednesday, May 31, 2017

Constitutional Authority Statements

The rule* requiring that for any bill or joint resolution to be introduced in the United States House of Representatives, a document submitted on its behalf must state "as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution," was adopted by that House in 2011.  Of course, I approve of the spirit behind that rule, but unless the rule can be put into a more useful form (although I doubt that it would be possible for a rule of either house of Congress to be adequate to this purpose), it would be best if the House of Representatives would dispose of it.

That is what I decided after recently reading the "Constitutional Authority Statements" in the Congressional Record for a fairly large number of bills (though admittedly a fairly small percentage of all the bills introduced in the House of Representatives so far this year).  Reading those statements written by so many U.S. Representatives in their attempts to justify so many bills covering a wide range of issues quickly made two things obvious:

First, requiring the submission of these statements neither restricts (even a little) the ability of Representatives to introduce bills that would exercise powers not vested in Congress by the Constitution nor provides anyone (whether in Congress or out of it) with anything that could be used effectively to hold Representatives accountable when they rest their bills on dubious or nonexistent constitutional authority.

Second, unless a way is found to make requiring Representatives to file Constitutional Authority Statements for each bill to serve some useful purpose, it will continue to have only the lone effect that it has now: to add to the commonplace unconstitutionality of most of their bills the disgrace of putting on the record (and then publishing it) a collection of all of these statements, which demonstrate an almost universal, open contempt, with impunity and only rarely with any remedy, for the very idea that this rule was meant to promote **.  I think I am justified in describing it as "open contempt" when more than a fourth of the statements that I read relied exclusively on the "necessary and proper" clause (without any indication of what in the Constitution the bill might have been necessary and proper in order to carry into effect, if anything), another fourth either relied on the commerce clause alone or in combination with the necessary and proper clause, and about a sixth of the statements simply pointed to Article I, Section 8, with no additional detail ***.  Although Congress is granted some of its powers in parts of the Constitution outside of Article I, Section 8 (and by that, I do not just mean the amendments), the very purpose of Article I, Section 8 is to identify as comprehensively as possible what Congress is empowered to do, and it does so in eighteen different clauses, of which clauses there are many which identify several different powers.  It may be possible to draft a bill for which the constitutional authority would be best identified by a general reference to Article I, Section 8, without specific mention of anything in it, but that would be a very unusual bill, and none of the bills for which only the general reference to Article I, Section 8 was submitted as the source of authority had the unusual qualities that would be needed.

The fact that people are getting away with citing "Article I, Section 8" as the source of constitutional authority for their bills leads me to seriously doubt whether requiring Representatives to submit Constitutional Authority Statements for those bills is serving any useful purpose at all -- and if it is, I wonder how that is possible.  Pointing to "Article I, Section 8" (with no further specification) as the source of the constitutional authority for Congress to pass a given bill is hardly any better than it would be if a Representative were to instead say only that the constitutional authority for the bill comes from "the Constitution".


* This "rule" is a requirement that was inserted into Rule XII of the House of Representatives.  It is a rule in the ordinary sense of the term, but it has not independently been honored by the House of Representatives by the bestowal of the formal title of "Rule".  When I call it a "rule", I am using that term in its ordinary sense.

** It is possible that the rule was only meant to appear to promote the idea that it is only constitutional for Congress to exercise powers when the powers that it exercises are derived from the Constitution.  However, the rule was adopted over six years ago, and it makes little difference to me now whether the House of Representatives of the One Hundred Twelfth Congress sincerely believed that requiring bills and joint resolutions to be accompanied by Constitutional Authority Statements would discourage unconstitutional legislation.

*** I looked up these bills to see what the statements given were intended to justify -- after all, even as heavily abused as the interstate commerce clause is, it is certainly possible for it to be legitimately invoked as the authority for a bill, so I needed to find out what those bills actually were before condemning the use of the interstate commerce clause as authority for them -- and a few of the bills for which the interstate commerce clause or the "necessary and proper" clause had been offered were authorized by the Constitution (or contained little that the Constitution does not authorize).  For some of those, however, reveal another problem with requiring Constitutional Authority Statements to be submitted for all bills and joint resolutions in the House of Representatives: which power does Congress use when it passes a bill to repeal a prior act of Congress that was not authorized by the Constitution?  Which power does Congress use if it does not repeal but passes an act to ameliorate somewhat or deflate a previous act that Congress had passed without the authority of the Constitution?  Representatives who introduce such bills may find it difficult to identify a specific power to name in their Constitutional Authority Statements.  (For them, the best answer may be to simply point to the first sentence of Article I, but it is not a perfect solution -- particularly if they are unable to repeal the previous, unauthorized law altogether and have no choice but to leave a modified form of it in place for a time.)

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