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Monday, December 20, 2010

Constitutional Authority for Legislation in the 112th Congress (the House, Anyway)

Making the electronic rounds over the weekend was a proposed rules change by the incoming Republican leadership in the House, to require any new bill to include a statement identifying the particular source of constitutional authority for the substance of the legislation. In particular, the new language to Clause 7 of Rule XII would specify that:

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.”

I haven't thought that hard about this rules change, but it strikes me as a fairly silly political trick that will be utterly devoid of legal significance.  It's not just that Congress has never had to specifically identify the source of its power for legislation in the past; it's that, if memory serves, the courts have often upheld legislation based on powers other than the one (or two) most obvious / likely candidates, whether or not Congress identified that provision as a source of its power. Nevermind the separate but equally distinct possibility that a bill will be amended between introduction and passage to regulate based on different enumerated powers than those initially identified by the bill's sponsor...

Do folks disagree? That is, does anyone think that a court would strike down a federal law that is a valid exercise of Congress's constitutional authority on the ground that it's not a valid exercise of the power Congress thought (or "said") it was exercising? If not, is this federalism-inspired theater? Something more sinister?

Posted by Steve Vladeck on December 20, 2010 at 03:09 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Sinister? I see how people could think that it's unwise, silly, unnecessary, inconsistent, etc. But how can it possibly be sinister?

That's an actual question, not just snark...I struggle to find any set of fact under which the proposal could be considered sinister.

Posted by: casual reader | Dec 21, 2010 12:59:52 PM

Steve asks: "Should we also enact rules requiring Members to read the legislation they enact, or to bar them from voting yea on bills they believe to be unconstitutional? I'm all for folks knowing what their authority is (and what their responsibilities are), but why stop (or start) here?"

As with all questions of where you draw the line, I think you need to take each issue on the merits.

1) I don't think we should require members to read the bill because the requirement is vague, would be tremendously time-consuming, and unlikely to be of any actual benefit. See my post on the matter here:

2) The question of unconstitutionality is interesting, but I don't know how it could be enforced: How do you know what a legislator really thinks deep down?

3) In contrast, the requirement of sourcing the legislation in an enumerated power is very easy to satisfy, is quite clear, and serves as a good reminder that aids the political safeguards of federalism.

Posted by: Orin Kerr | Dec 20, 2010 11:23:28 PM

On the schoolyard, the game was 'make 'em say 'Uncle.' Now, they're all grown up, and the game is 'make 'em say Commerce.'

Posted by: Jon | Dec 20, 2010 10:34:42 PM


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Posted by: Adam Scales | Dec 20, 2010 6:03:32 PM

I hope the self-promotion will be excused, but in response to Adam Scales's assertion that "There is no excuse for voting for (or signing) legislation the political actor actually believes to be unconstitutional," may I recommend my forthcoming article, Signing Unconstitutional Laws, which offers an excuse for that very practice?

Posted by: WPB | Dec 20, 2010 5:41:09 PM

Sure, I'm a cynic about whether this will help, but it can't hurt. It's all about focusing the Congressional weasels, not about judicial enforcement. If it's UNDER-inclusive, because of the amendments, then that just means that it should be re-applied at each stage. But that's not a reason not to do it at all.

As for the "read-the-bill" demands, of course those aren't enforceable. But we could try mandated time periods between amendments, committee votes, and floor votes, so that reading is at least POSSIBLE for those members who care to read. Also, shouldn't we poor schmuck citizens, who will live under these laws, have the chance to comment on them, before they are passed at midnight?

To me, the question isn't whether there's justification for such waiting periods -- the question is the reverse: is there any justification for deliberately speeding up a vote to AVOID public review? Let's be honest -- even if you love the stimulus, the health care law, etc., each was rushed specifically to avoid review. (Yes, the HCR was around for 15 months, but the final critical changes were rushed to avoid review. The Medicaid actuary even said he couldn't score the thing.)

Seriously, is there any reason NOT to allow time for review, other than openyl defeind it on anti-democratic grounds of "don't let the people know, because they don't know what's best for them"? At most, there's "emergency" legislation, but that would apply o a war declaration after Pearl Harbor, or maybe spending after a Katrina, or such. It can't include a law whose provisions don't kick in for several years, can it?


Posted by: cynic | Dec 20, 2010 5:30:25 PM

Steve, your response to Orin is unintentionally revealing (of the problem generally, not your own motives).

I have mixed feelings regarding a pre-voting reading requirement (my feelings trend toward a regretful sympathy). But your second question tees up the problem nicely. There is no excuse for voting for (or signing) legislation the political actor actually believes to be unconstitutional. There will likely be few such cases (which may be distinguished from "close cases" or statutes the actor suspects will be invalidated by SCOTUS as presently constituted, without regard to his view of the merits. The only benefit of permitting political actors to ignore their own views of constitutionality is to relieve them of responsibility: an actor gets to vote (just before the election say, to defuse a controversial issue), but can later blame everything on the Court, while winking his approval. That's not much of a benefit, in my view.

Likewise, it would be useful for members of Congress to be forced to articulate the source of power upon which their preferred legislation rests. At least, in theory. I assume such a provision would receive the same careful attention from legislative staffers that legislative history does; in practice, I don't think this would help much, though it might concentrate discussion at re-election time). Likewise, I can't imagine how either of your suggestions could be enforced. But I think we disagree on the extent to which Congress should be reminded of its constitutional tether.

Posted by: Adam Scales | Dec 20, 2010 5:17:43 PM

Orin -- Should we also enact rules requiring Members to read the legislation they enact, or to bar them from voting yea on bills they believe to be unconstitutional? I'm all for folks knowing what their authority is (and what their responsibilities are), but why stop (or start) here?

Posted by: Steve Vladeck | Dec 20, 2010 4:41:50 PM


The proposed change has nothing to do with judicial review. The point of the proposed change is to remind Congress that Congress has limited powers. What you think of the rule change presumably hinges on whether you think Congress needs reminding of that.

Posted by: Orin Kerr | Dec 20, 2010 4:26:16 PM

Steve, but isn't that "chameleon" character frequently seen? A farm bill might go to an agricultural committee, but by the time everyone's done messing with it, it might really look like a tax bill. Yet, I think there is some value in requiring farm bills to come from farm committees and so on. I guess I'm not very bothered by the fact that the shape (and entire thrust!) of a bill might change -- I still think there's some value in setting guidelines for the bill, as initially set out. And if all this rule requires is a concise constitutional statement, I think that'd be helpful, even if devoid of legal significance.

That being said, maybe the intentions of the proposal is political theater, but I don't think anything is substantively bad here.

Posted by: andy | Dec 20, 2010 4:03:30 PM

Historical example is the Trade-Mark Cases, where the Court struck down the trademark statute when Congress purported to act under the IP clause. Two years later, Congress enacts substantially the same statute under the Commerce Clause.

Posted by: TJ | Dec 20, 2010 3:55:21 PM

Andy -- I don't disagree that most of Congress's rules are meant for internal guidance rather than external enforcement. My point here is that this rule does very little in that regard, because it only applies at the moment of introduction. If this were more than just a political stunt, wouldn't it make sense for the rule to apply either (1) when a bill is proposed and when any amendment thereto is introduced; or (2) right before a bill is passed?

Posted by: Steve Vladeck | Dec 20, 2010 3:44:48 PM

"will be utterly devoid of legal significance"

So what? Aren't most procedural rules adopted with the understanding that courts won't strike legislation that fails to comply with them? To the extent that this rule just serves clarity purposes, what's wrong or sinister about it? It doesn't seem like a bad idea to contain some basic constitutional information in a proposed bill, even if the information is imperfect. I'm sure there are other procedural rules for which there is no remedy (e.g., "each proposed bill shall be accompanied by a committee report before being voted on") but still serve useful purposes, aside from theater.

I'm not familiar with the controversy surrounding this rule, but it would seem like a significant departure if the House expected a court to enforce its internal rules. But to the extent that the persons behind the rule are suggesting as much, that'd be nice to know.

Posted by: andy | Dec 20, 2010 3:32:57 PM

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