Sunday, August 2, 2020

A Good Bill With A Good "Constitutional Authority Statement"

I have chosen to put the substantively unimportant point up front: A little over three years ago, I wrote that the rule in the United States House of Representatives which requires that any bill or joint resolution introduced in that house be accompanied by a statement identifying the part of the Constitution that gives Congress the authority to enact it (the bill or joint resolution) has not, in practice, served any useful purpose, and that if it has any effect at all, that effect must be to make U.S. Representatives accustomed to and comfortable with regularly expressing on the record their open contempt for the United States Constitution.  I had reviewed the Constitutional Authority Statements for a reasonably large number of bills that had (at that time) recently been introduced in that house, and most of these statements simply were not honest, avoiding the need to supply a genuine statement of a source of authority by invoking the Interstate Commerce Clause, the Necessary and Proper Clause, or simply the Constitution's Article I, Section 8 at large, regardless of whether any of the three fit the bill.

However, this June, Rep. Justin Amash introduced H.R. 7085, the "Ending Qualified Immunity Act", in the United States House of Representatives.  When I read the bill, I immediately thought, "The source of constitutional authority for this bill is obviously Section 5 of the Fourteenth Amendment."  Then, out of curiosity, I decided to look at the Constitutional Authority Statement for the bill, and when I did, I saw this:

I would expect nothing less from Rep. Amash, but I still appreciate that he has now given me the opportunity to finally see a Constitutional Authority Statement that I can tell was written by someone who is familiar with the Constitution.

All of that was the substantively unimportant point.  To that, I add that this is a good bill that ought to have received more support than it has, so far.  42 U.S.C. § 1983 (along with a number of other excellent sections) was passed into law in order to better secure the rights of every person against the violation of those rights by state actors.  The enactment of Section 1983 (among other sections) was part of the effort of Congress to enforce the Fourteenth Amendment to the United States Constitution, which Section 5 of that amendment authorizes Congress to do, and which Congress was right to do.  Congress would be right to do it again, this year, by passing this bill and fixing the judicially-created sinkhole into which much of Section 1983's power to deliver justice has collapsed and fallen away.

Unfortunately, the bill does not appear to have made much progress in the House of Representatives, yet, and the current President of the United States has made known his opposition to anything that threatens to abolish or curtail qualified immunity, in keeping with his general position favoring wrongdoing by enforcement personnel being met with impunity.  Regardless, the bill deserves support.

I would offer one suggestion for improvement, however, and it concerns the bill's "Short Title".  I would really like the chance to hear people refer to this bill as "The Civil Rights Act of 2020".