Last year, after its historic victory, the new Republican majority in the House of Representatives took a commendable step toward curbing congressional enthusiasm for enacting laws that reach beyond those powers prescribed in the Constitution.
When Congress convened a year ago, House Republicans amended House Rule XII, an internal housekeeping rule, so that it now requires every bill to include a "Constitutional Authority Statement"-that is, a citation to some specific constitutional authority for the proposed legislation to be printed in the Congressional Record.
Last week Constituting America released its analysis of the new and improved Rule XII, and we conclude that it's a needed step in the right direction.
First, Rule XII reminds Congress-even if subtly-that the Constitution has meaning and boundaries that should be respected. It challenges the misguided idea that the Constitution can mean anything that any Congressman says it means. Second, it reinforces the well-known, but often ignored principle that Congress has limited, enumerated powers spelled out in the Constitution. Third, the Rule allows Congress to engage in a conversation about the meaning of the laws and the Constitution itself, rather than simply punting all questions of constitutionality to the least representative branch-the courts. And finally, it offers constituents some additional insight into how their elected Representatives understand the Constitution and congressional authority.
Constitutional Authority Statements make congressional action more transparent, more accountable. Indeed, a closer look at the Statements submitted over the past year reveals why the Rule was necessary in the first place, and that some Members really should become more acquainted with the Constitution they have sworn to uphold.
The House Republican Study Committee (RSC) recently updated and released a tally of the Constitutional Authority Statements for every bill and joint resolution introduced during this Congress-all 3865 of them. We relied on RSC's data to provide a bird's-eye view of how the House has complied with Rule XII in preparing our analysis for Constituting America.
For example, according to the RSC, Article I, § 8, Clause 3-commonly called the Commerce Clause-was cited more than any other clause. This is not surprising. Since the 1930s, the Supreme Court's hyper-elastic reading of the Commerce Clause has declared virtually every so-called "commercial" statute constitutionally valid, making the Commerce Clause a "safe" authority to cite, but also suggesting that Congress sees fit to legislate in matters of "commerce" more than in any other sphere of American life.