Upholding the Constitution

Republicans highlight poor constitutional justifications for bills

U.S. Constitution / WC
November 19, 2012

Each member of the House has had to attach a Constitutional Authority Statement (CAS) to every proposed bill since Jan. 5, 2011.

However, one group of Republicans is unimpressed by the offered justifications for constitutionality.

The Republican Study Committee (RSC) analyzes each statement—3,865 in the first year alone—and in response to some of the more questionable justifications began emailing every congressional office a "Questionable Constitutional Authority Statement of the Week."

"We started highlighting horrible Constitutional Authority Statements because there were so many of them," said Brian Straessle, RSC spokesman. "Think of it as a shaming mechanism to get people to think seriously and carefully about the intended limits of the federal government’s power."

For example, the justification for bill H.R. 401, to honor Muhammad Ali earned recognition from the RSC on the week of June 7.

H.R. 401 authorized President Barack Obama to present the famous boxer with a gold medal on behalf of Congress. The CAS cited "Clause 2 of Section 5 of Article I of the Constitution, Clause 1 of Section 8 of Article I of the Constitution, and Clause 18 of Section 8 of Article I of the Constitution."

The RSC responded by saying, "The statement cites three different potential justifications for the legislation, and neither individually nor as a group do these seriously attempt to justify the proposed action."

The response continued:

Most impressively, the bill cites Article 1, Section 5, Clause 2, which reads "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member." As Muhammad Ali is not an elected representative in the House or Senate, it is difficult to imagine that House rules of self governance or procedures for expulsion would concern him.

The Eva M. Clayton Fellows Program Act’s justification from Oct. 25 cited "Article I, Section 8, Clause 3 of the Constitution, [under which] Congress has the power to collect taxes and expend funds to provide for the general welfare of the United States."

"This Constitutional Authority Statement would be fine were it not for the fact that words actually have definitions," the RSC response said.

The Third Clause of Article 1, Section 8 (also known as the Commerce Clause) reads: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Notably missing from this clause is any mention of taxation or General Welfare.

The justification for a bill amending the Fair Labor Standards Act noted, "Constitutional analysis is a rigorous discipline which goes far beyond the text of the Constitution, and requires knowledge of case law, history, and the tools of constitutional interpretation."

"The most interesting part of this explanation is the insistence that constitutional analysis requires not merely knowledge of the case law, history, and text of the Constitution, but additionally requires the ‘tools of constitutional interpretation,’" the RSC’s response said.

"Unfortunately the statement fails to explain these magical tools, and a search on how to acquire them proved fruitless," the response said.

"There are a lot of people in Congress who don’t take constitutionally limited government seriously," Straessle said. "No big surprise there, but it’s important for those who do take the Constitution seriously to demand accountability from those who don’t."

Rep. Scott Garrett (R., N.J.) pushed for the requirement. When asked for comment, his office referred to an op-ed.

"I believe we can do much better," Garrett said. "In particular, I believe we can do more to ensure the constitutional citation rule is taken more seriously."

He proposed that the House be able to vote down unconstitutional bills.

It is unclear if that would actually prevent the abuse he seeks to curb.