Thursday, June 1, 2017

Another Constitutional Authority Statement Relying On Section 8 Of Article I In Its Entirety

Returning to yesterday's discussion of the Constitutional Authority Statements required by the rules of the U.S. House of Representatives for all bills introduced in that house, I think it worth mentioning what I found had been submitted as supplying the constitutional authority for Congress to pass the "Protecting Against Child Exploitation Act of 2017", H.R. 1761.  I did not learn until earlier today that the House of Representatives had passed this bill, which is controversial for numerous reasons but which passed by a very large majority.

In addition to all of the other objections to H.R. 1761, however, I would like to add one relating to the very topic I covered yesterday: this is yet another bill for which the only constitutional authority that its sponsor thought necessary to offer in support of it came in the form of a bare reference to "Article I, Section 8".

As I wrote yesterday, submitting a Constitutional Authority Statement that founds the constitutional power of Congress to pass a particular bill on "Article I, Section 8" without offering any further details is hardly better than just claiming that Congress is granted that constitutional power by "the Constitution".

The Constitutional Authority Statement's reliance on Article I, Section 8 in its entirety is especially strange considering that throughout H.R. 1761's actual text, it is obvious that the bill is designed so as to take advantage of many of the U.S. Supreme Court's most bizarre and untenable precedents concerning the Constitution's grant of power to Congress to "regulate Commerce ... among the several States", using those precedents to set up a strong enough pretense of constitutionality to allow the bill to survive any potential challenges to it in court.

Through those precedents, the Supreme Court has made it possible for Congress to successfully use this "interstate commerce clause" to allow Congress to enact legislation for purposes and having effects which do not pertain to commerce between the states in any serious way.  (These precedents work very much to the advantage of dishonest people and people who readily believe and do whatever they are told, because such people are far more comfortable with this type of precedent than other people are able to be.)  For example, most of the body of H.R. 1761 is devoted to replacing 18 U.S.C. §2251 with a heavily modified form of the existing version.  Like that existing version, the §2251 that H.R. 1761 would replace it with makes it an essential element of the offense that the prohibited conduct be accompanied by any of a number of commerce-themed circumstances that it lists.  (The sole purpose of requiring the presence of those circumstances, which have nothing to do with the conduct meant to be prohibited, is to allow Congress to get away with legislating in matters that the Constitution does not place under its control, allowing it to prohibit a particularly heinous crime which, however, the states separately can and do prohibit and prosecute on their own.)  One of those listed circumstances, which H.R. 1761 borrows from the current version of §2251, requires nothing more to be satisfied than for the core offense (the conduct that Congress actually wants to prohibit, as opposed to the commerce-related hook that Congress uses to get control over the subject) to be committed using materials that have traveled in or affected interstate or foreign commerce.  As the core offense to be prohibited involves the sexual abuse of a minor, we would have to take leave of our senses to think that the source of any materials used by the perpetrator is important, but Congress knows that it has to insert irrelevant elements like this into the definition of the offense in order to give the courts what little they insist upon before they will treat it as though it were authorized by the Constitution ... so that is what Congress does.

But even though H.R. 1761 was clearly designed to allow the interstate commerce clause to be invoked as the source of constitutional authority for it, the Constitutional Authority Statement submitted for it makes nothing more than a general reference to Article I, Section 8 of the Constitution.  Unless U.S. Representatives are going to start taking the Constitutional Authority Statement requirement more seriously than this, it will do no good to keep that requirement in place at all.


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