The Washington Post reports on a new House rule that “will require that every new bill contain a statement by the lawmaker who wrote it citing the constitutional authority to enact the proposed legislation.”
This memo to the members of the 112th Congress provides the text of the proposed rule change:
The new rule will be a new paragraph of clause 7 of rule XII:
“(c) A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution. The statement shall appear in a portion of the Record designated for that purpose and be made publicly available in electronic form by the Clerk.”
The memo provides a few examples of sources of constitutional authority:
- The constitutional authority on which this bill rests is the power of Congress to make rules for the government and regulation of the land and naval forces, as enumerated in Article I, Section 8, Clause 14 of the United States Constitution.
- This bill is enacted pursuant to Section 2 of Amendment XV of the United States Constitution.
- This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 3 of the United States Constitution.
- The Congress enacts this bill pursuant to Clause 1 of Section 8 of Article I of the United States Constitution and Amendment XVI of the United States Constitution.
- This bill makes specific changes to existing law in a manner that returns power to the States and to the people, in accordance with Amendment X of the United States Constitution.
Funny how they omitted the Commerce Clause as a source of Constitutional authority.
What’s interesting is that the memo suggests several different sources to assist members “in identifying the power granted to Congress by the Constitution to enact a proposed bill.” Among them, The Federalist Papers, The Congressional Research Service’s “Annotated Guide to the Constitution,” the Heritage Guide to the Constitution, The Founder’s Constitution (from the University of Chicago), as well as research from Brookings, Cato, Federalist Society, and ACS.
I really like this sentence:
The adequacy and accuracy of the citation of constitutional authority is matter for debate in the committee and in the House.
The notion that Congress will actually debate the adequacy of constitutional authority for a bill is astounding. In the past, most members of Congress simply assumed they have plenary powers (though the Court shot that notion down in Lopez and Morrison).
What happens if a sponsor refuses to attach a Constitutional Authority Statement?
A. Under the rule, the clerk will not accept the bill and it will be returned to the sponsor. This is the same process used to enforce clause 5 of Rule XII, which since 1995 has prohibited the introduction of bills or resolutions which seek to designate a specific period of time (such as a day, week, or month) for a particular commemoration.
Here is one of my favorite Q&A:
Q. Isn’t it the courts’ duty to determine whether a law is constitutional and thus doesn’t this rule infringe on the power of the courts?
A. No. While the courts have the power to overturn an Act of Congress on the basis that it is unconstitutional, Members of Congress have a responsibility, as clearly indicated by the oath of office each Members takes, to adhere to the Constitution.
It’s true. Congress members take an oath to “support and defend the Constitution.” No, I am not kidding.
Will this rule have any meaning? The post asked one Prof at a school I’ve never heard of who claims to be a conservative-libertarian (whatever the heck that is):
“I think it’s entirely cosmetic,” said Kevin Gutzman, a history professor at Western Connecticut State University who said he is a conservative libertarian and sympathizes with the tea party.
So here is my question. Let’s assume that PPACA was passed under these House Rules. Assume all of the house debates described the individual responsibility provision as a penalty, but the sponsor attached a constitutional authority statement indicating that it was a tax. The mandate is challenged in Court. Should a judge use the house debates to determine that it was enacted as penalty, or would the Constitutional Authority Statement trump that legislative history? is the Statement a form of legislative history? I don’t think it is part of the Bill, as I don’t believe the Senate has to approve it, nor does the President have to sign it.
Here is what the Memo says on this point:
Q. What impact will the Constitutional Authority Statement have on litigation regarding the constitutionality of Acts of Congress?
A. To the extent that a court looks at the legislative history of an Act, the Constitutional Authority Statement would be part of that history. However, the courts have made clear that they will not uphold an unconstitutional law simply on the basis that Congress thinks that the law is constitutional.
So why have this rule at all?
A. Just as a cost estimate from the Congressional Budget Office informs the debate on a proposed bill, a statement outlining the power under the Constitution that Congress has to enact a proposed bill will inform and provide the basis for debate. It also demonstrates to the American people that we in Congress understand that we have an obligation under our founding document to stay within the role established therein for the legislative branch.