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.
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.
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