It’s In There Somewhere

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I can’t tell you how many times that, when I’ve asked someone to cite the constitutional authority for the point they are arguing, they vaguely give me an Article and Section number without explaining how said article justifies their favored course of action.  Well, you will all be happy to know that our representatives in Congress are not any better at offering specifics.

At the beginning of the 112th Congress, as part of an effort to inject more transparency into the legislative process, the House adopted a rule requiring that each bill be accompanied by a Constitutional Authority Statement.  The purpose of the rule was to expose the cavalier attitude of those members who desire to legislate ‘just because they can.’

Well, after a year of legislating under this rule, it appears that we are in serious need of accountability measures to provide some clarity and specificity to the authority statement.  Otherwise, the rule will be regarded as yet another “transparency” gimmick of Congress.

Republican congressional staffers combed through almost 3800 bills and joint resolutions that have been introduced this year, in an effort to gauge the clarity and specificity of the Constitutional Authority Statements.  For the most part, the results are pretty pathetic.  Here are some of their key findings:

  • Overall, 945 bills contained authority statements which do not reference a specific power granted by the Constitution.  Many of these merely cited “Article 1” or “Article 1 Section 1” “Article 1 Section 8.” In other words, they just cited the fact that Congress has the power to legislate, but failed to divulge which constitutional power or specific clause is supporting their legislation.
  • There were 732 bills which only referenced the commerce clause, 660 which only referenced the general welfare clause, and 321 which mentioned the necessary and proper clause without reference to a previous Constitutional clause to which the necessary and proper clause might apply.
  • In total, there were 2658 Constitutional Authority Statements that were either questionable or vague.  That represents roughly 69% of all bills and resolutions introduced in the 1st Session of the 112th Congress.
  • While more of the vague citations are attributable to Democrat bill sponsors, many Republicans were lax in offering meaningful authority statements.  Almost as many Republicans used the inexplicit commerce clause as Democrats.

This highlights a number of problems with both Congress and our understanding of the Constitution in general.  First of all, attempts to reign in Congress are almost always futile because Congressmen are adept at skirting around clear legislative language.  After all, we’re dealing with a bunch of lawyers – both on staff and in Congress itself.  Lawyers are masters of finding, and then abusing the fine print.

But let’s not just chalk up to maliciousness what we can also chalk up to laziness.  Yes, these are all smart people, but they’re also lazy.  When staff drafts legislation* they don’t have enough time to be rummaging around 100-year old, dry old documents like the U.S. Constitution.  They can vaguely remember their Con Law class and some decision handed down by some FDR-appointed judge that says that the commerce clause covers that, and so VOILA!  Constitutional justification.

*: And, by the way, make no mistake about it – it’s Congressional staff that writes legislation.  Do you think Congress critters are the ones hammering away at their laptops drafting this minutiae?  Of course not.   Do you really think they’re busy putting together 2,000 page documents?  Uh uh.  No, we are governed by 30 year olds fresh out of law school who are just biding their time until they get a job with a K Street firm that will lobby Congress on the labyrinth legislation that said staffer just penned.  Meanwhile, the people who actually have to vote on these bills have, at best, skimmed them, trusting their personal staffers to give them the gist of what is written on paper.  Just what our Framers envisioned, right?

Finally, let’s be honest – the FDR appointed judge probably just muttered something about the commerce clause in the ruling, offering barely much more substance than the Congressional staffer.  Over the years the judiciary, through the beneficence of broad interpretation, has often stretched Constitutional meaning beyond the breaking point.  If staff were inclined to beef up their Constitutional Authority Statements, we would be no more satisfied with the end result.  It would still likely be utter malarkey, just better sourced and more specific-sounding malarkey.

Still, I think this exercise has one useful purpose.  We all knew that Congress was just making it up as it went along, and now we have written proof of that.

More to explorer

Keeping a Promise

As faithful readers of this blog know, I was a very reluctant, and late, supporter of Donald Trump in 2016.  I grudgingly


  1. The Constitutional Authority Statement requirement is the most naive think I’ve ever heard of. It’s the kind of thing a high school US government class would come up with as the foolproof solution to legislative overreach. Other similar ideas include requiring legislators to read their bills aloud or keeping all bills under three pages. It’s a problem with populism in general. People are literate enough to know there’s a problem but not literate enough (or humble enough) to know that the obvious solutions are useless. Conservative thought should, in theory, be less susceptible to this sort of thing but a conservative frame of mind is not the same as political conservatism.

  2. “The Constitutional Authority Statement requirement is the most naive think I’ve ever heard of. ”

    Oh, I’ve heard much more naive things than that RR. Now in regard to the Constitution the most dangerous thing I have ever read was said by Chief Justice Charles Evans Hughes in 1907 when he was Governor of New York (Hughes would later resign from the Court and run for President on the Republican ticket in 1916): “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.” Of course this turns the supreme governing document of our country into a tabula rasa for lawyers wearing black robes to write what they wish. I can think of few thoughts on the Constitution further from the intent of the drafters of the Constitution. The truly dangerous thing of course is that most judges and attorneys would agree with this as both a statement of fact and something desirable.

    Another Hughes quote explains much of the convuluted development of Constitutional law in this country: “At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.” What an excellent explanation for Roe v. Wade!

  3. ” . . . , promote the general Welfare, . . . ”

    And, we know from reading the Federalist Papers and the minutes and the assorted writings of the Framers that they wrote that in order to provide cover for community organizers.

    “The welfare of humanity is always the alibi of tyrants.” Albert Camus

  4. An expansive understanding of the commerce clause power is pretty much settled law, and cannot be so easily dismissed as the idiosyncratic understanding of “FDR appointed judges.” Even the most conservative jurists acknowledge this. Scalia may look for a slightly more meaty nexus between a piece of legislation and interstate (or foreign) commerce than Breyer, but the concept that Congress can enact what amounts to police power legislation as long as there exists some significant interstate commerce effect is not only well-established, it is consistent with the text and impossible to police otherwise without examining legislative motives — something impractical. Neither Bork nor Scalia object to this, though I believe Scalia continues to reject the dormant or negative aspect of the commerce clause (but this is completely different). This is not to say that the Framers actually envisioned a legislative branch with such robust powers — they probably did not; but they allocated such powers all the same. The Framers did not envision Marbury v Madison and its implications in consigning tremendous policy powers to the “least powerful branch” either, but Marbury was rightly decided nonetheless. The consequences of legal documents — contracts, wills, statutes or even constitutions are never perfectly anticipated by their architects.

    That said, this does not mean that Obamacare does not present serious constitutional questions. Surely the imposition of an affirmative requirement to purchase a product or service that is not contingent on any voluntary act such as choosing to drive a car presents a fair constitutional question insomuch as it seems to suggest that Congress can prohibit a decision to *not* engage in commerce. But most federal laws, however imprudent and counterproductive we may think they be, are not unconstitutional.

    Just as liberals have a well-developed tendency to believe that any state legislation they do not like must violate the federal constitution under some contrived theory or another, conservatives tend to believe that any federal legislation they do not like must somehow violate the federal constitution. They are both wrong. For better or worse, the constitution gives pretty wide latitude for legislatures, state and federal, to express the will of voters through legislation. Congress may well do harm by its activism, but for the most part such activism is not of constitutional moment; judicial activism on the other hand is — when courts strike down legislation as unconstitutional all too oftern they are simply acting as super-legislatures substitution their own policy preferences for those of legislatures.

  5. Congress may well do harm by its activism, but for the most part such activism is not of constitutional moment; judicial activism on the other hand is — when courts strike down legislation as unconstitutional all too oftern they are simply acting as super-legislatures substitution their own policy preferences for those of legislatures.

    Congress overstepping constitutional limits is no less egregious than the Courts doing it simply because it is the democratic branch. All three branches are bound by the same Constitution. This is why I don’t like the phrase “judicial activism.” I’ve made this comparison before, but think of two Supreme Court cases – Wickard v. Filburn and US v. Lopez. Both cases were based on Congressional reliance on the commerce clause. In the former, SCOTUS made a leap of logic in order to uphold legislation that was based on at best, a tenuous connection to the commerce clause. In the latter case, SCOTUS overturned legislation that it deemed unconstitutional because it did not really rise to the level of interstate commerce. Which decision was the correct one? The latter. Yet, that would be decried as activism based on the definition given above. The fact of the matter is that both cases involved Congressional acts of constitutional activism, but only in one case did SCOTUS act as an accomplice.

    Mike is correct in noting that not all bad legislation is unconstitutional. And, similarly, not all constitutional legislation is wise. Sometimes we do get lucky and there’s something that comes along that is both bad policy which also happens to be unconstitutional – like the individual mandate.

    But this is all besides the point. Even if we concede that this requirement is naive, wouldn’t it be nice for Congressional staff to at least make an effort to constitutionally justify their proposals? I’m not asking for 100 page briefs. I just want something a little more substantial than “uh . . . . commerce clause.” Say why the commerce clause (or 14th Amendment or whatever) allows for a certain action. Even if you’re wrong it’s still something more substantive than what we have now.

  6. I just don’t see what good that would do. You can’t limit the courts ability to consider other arguments so it’s not a legally binding limitation. So you can mock it but you can do that anyway.

  7. Paul, I don’t disagree about the seriousness of Congress overstepping its constitutional authority. I just think it rarely does. Wickard is perhaps the high water mark of Congressional regulation of interstate commerce. While a close call (and personally offensive) it is probably correctly decided. The purpose of the legislation was to drive up the price of wheat — clearly within the clause’s ambit — and the Court was correct that home production and consumption is inimical to that objective. Lopez was probably also correctly decided. When Congress is going to use the commerce clause to effectuate a social/police power objective it must at least articulate some economic/commerce clause rationale — something it did not do in connection with the gun legislation the Court struck down.

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