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Friday, June 3, 2011

Constitutional Authority Statements

From the House Committee on Rules:

On January 5, 2011, the House adopted a new rule requiring each introduced bill or joint resolution to be accompanied by a statement of constitutional authority. This describes the requirements of the rule, along with links to materials which will be helpful to ensure compliance.

Text of the Rule

The rule is a new paragraph of clause 7 of rule XII:

“(c)(1) A bill or joint resolution may not be introduced unless the sponsor submits 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.

“(2) Before consideration of a Senate bill or joint resolution, the chair of a committee of jurisdiction may submit the statement required under subparagraph (1) as though the chair were the sponsor of the Senate bill or joint resolution.”.

The rule also repeals clause 3(d)(1) of rule XIII (relating to constitutional authority statements in committee reports).

Compliance with the Rule

When a Member presents a bill or joint resolution for introduction and referral (when it is dropped in the “hopper”), the bill must be accompanied by a separate sheet of paper citing the constitutional authority to enact the proposed bill or joint resolution.

The statement should include the Member's name and signature, the title of the measure it accompanies, and a citation to the power or powers granted in the Constitution to enact the bill. Below are links to a form (in both Word and PDF format) designed by the Office of the Legislative Counsel to assist Members in complying with this requirement.

The rules change was a nod to the tea party movement, whose members may have expected that it would curb legislative activism. After all, if members could not find constitutional justification for bill expanding government power, they could not introduce them. But there are two gigantic loopholes.

The first is Article I, section 8, clause 1, which empowers Congress "to provide for the common Defence and general Welfare of the United States. " That phrase covers just about any kind of legislation about anything.

The second is the well-known "elastic clause," Article I, Section 8, Clause 18, enabling Congress to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

A glance at a recent set of constitutional authority statements indicates that many House members are taking advantage of these loopholes.

The rule may have symbolic value but it has no substantive impact at all.