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.