How’s That Constitutional Rule Working Out?

01 Oct, 2011 by Brian Garst

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When the new Congress took office, they instituted a rule requiring newly introduced legislation to cite Constitutional authority. So what has been the result? Not surprisingly, a significant number fail to properly identify specific Constitutional authority for legislative action. Research by the Republican Study Committee found that:

3 bills cite only the Preamble to the Constitution

84 bills cite only Article 1, which creates the Legislative Branch

58 bills cite only Article 1, Section 1, which grants all legislative powers to Congress

470 bills cite only Article 1, Section 8, which is the list of specific powers of Congress, without citing a specific clause

539 bills cite Article 1, Section 8, Clause 1, which grants Congress its taxing power and contains the “general welfare” and “common defense” language [Editorial note: The “general welfare” clause is a qualifier to the numerated powers, not an additional grant in its own right]

247 bills cite Article 1, Section 8, Clause 18, the “necessary and proper” clause, without citing a “foregoing power” as required by Clause 18.

309 bills cite two or more of the “general welfare” clause, commerce clause, or the “necessary and proper” clause.

87 bills cite Article 1, Section 9, Clause 7, which provides that no money shall be drawn from the Treasury, but in consequence of appropriations made by law.

210 bills cite Article 4, Section 3, which provides that Congress hall have the power to make rules and regulations respecting the territory or property of the United States

252 bills cite an amendment to the Constitution. For example, 54 cite the 10th Amendment (power not delegated to the federal government) [Editorial note: What could possibly be the reason for this?], 30 cite the 14th Amendment (“equal protection, etc.”), and 64 cite the 16th Amendment (income tax).

Please note: Some bills cite numerous sections of or amendments to the Constitution, and may be listed more than once above

It should come as no surprise that so many Congressmen fail to grasp the point of citing the Constitution, which is to identify specific authority or not bother introducing the bill at all. For a long time, members of both the Legislative and Executive branches have abdicated their Constitutional duties to the Supreme Court. They believe that they can simply pass whatever they want, and let the court sort out what is Constitutional and what is not. It is this attitude that the rule was attempting to help change.

If it was the intention of the Founders to give the courts sole concern over questions of the Constitution, they wouldn’t have bothered swearing anyone else to an oath to uphold the document. In reality, all elected officials are supposed to do their due diligence in upholding the Constitution by only acting within its bounds.

Obviously, this rule has not produced a profound shift in the attitudes of lawmakers, but at least it provides an opportunity to name and shame them. I’d love to see an individual or organization do the work and provide research more specifically tied to individual members, so that we can see who really takes seriously their oath, and who does not.

Cross-posted at Conservative Compendium