Horace Cooper

Similarly unfortunate are the 617 Constitutional Authority Statements that cite Article I, § 8-a section which lists a whole string of powers granted to Congress-without specifying which of those powers authorizes the bill.

At best, such rule-bending shorthand suggests a degree of carelessness or laziness, and at worst a willful disregard for Congress's limited lawmaking authority under the Constitution. Either way, this is valuable information.

Even the most flaccid citation to Article I, §8 tells us something (perhaps much) about the Member who submitted the Statement. For instance, it might suggest that the Member does not take the Rule seriously and could not be bothered to square the bill with a more definite constitutional authority. (It is useful information to know that a Congressman thinks himself entitled to flout rules; it is particularly useful for those who have to decide whether he should be sent to Washington to make rules.)

Alternatively, perhaps the Member could not find a more specific authority, but chose to submit the bill anyway, with little regard for the Constitution's enumerated powers. (Isn't that something that voters might think useful to know?) Or, perhaps the Member actually believes that Article I, §8 by itself confers sufficient authority for the proposed legislation, thereby demonstrating an embarrassing unfamiliarity with the founding document-surely an interesting fact for voters to consider. In any event, constituents have learned something important about their elected representative-something that might otherwise have remained hidden.

Why is this knowledge significant? Why should the governed learn such secrets? Because, as James Madison-the Constitution's author and leading advocate-prophesied in Federalist 44, when Congress misconstrues or exceeds the scope of its authority under the Constitution "in a last resort a remedy must be obtained from the people, who can by the elections of more faithful representatives, annul the acts of the usurpers."

This, after all, is the duty of a free and vigilant people.

Horace Cooper

Horace Cooper is a legal commentator and a Senior Fellow with the Institute for Liberty.

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