Constitutional Authority Statements: Are Republicans honoring their campaign promise?

Who's winning, who's losing, and why.
March 23 2011 7:46 PM

Because We Say So

How Republicans are explaining the constitutionality of every bill they introduce.

John Boehner. Click image to expand.
House Speaker John Boehner

Last week's House vote to ban federal funds for NPR was a Republican slam dunk—mostly. Seven members of the party voted against the bill, and at least one did so on constitutional grounds: "The bill's treatment of NPR is arguably unconstitutional," wrote Michigan Rep. Justin Amash on his Facebook page. "Art. I, Sec. 9, of the Constitution prohibits Congress from passing bills of attainder."

David Weigel David Weigel

David Weigel is a Slate political reporter. 

With his explanation, Amash was honoring a prominent promise from the 2010 campaign, a plank in the GOP's Pledge to America. "We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified," wrote Republicans. This was music to the Tea Party, which defeated at least one Democrat because they'd asked him to point to the part of the Constitution that justified the Affordable Care Act, and he blew them off, saying he "didn't worry" about it.

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Now some Republicans aren't worrying too much about it. Rep. Doug Lamborn, R-Colo., who introduced the NPR bill, filed a "Constitutional Authority Statement" that consisted entirely of six words: "Article I, Section 8, Clause 1." For those of you scoring at home, that part of the Constitution allows Congress to "lay and collect taxes, duties, imposts and excises."

"No lawyer takes this seriously," said an exasperated Sandy Levinson, a professor at the University of Texas's law school. "As any lawyer would know, it is not hard to come up with a constitutional justification for anything you want to do."

The Constitutional Authority Statements filed so far in the 112th Congress tend to support that view. They're a fascinating exercise. More than 1,200 pieces of legislation have been introduced so far in this Congress, slightly more coming from Republicans than from Democrats, and all of them are accompanied by statements. The main lesson is the same that a lot of legal cynics predicted last year: Almost anything can be justified by citing the Commerce Clause, which allows Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" or the Necessary and Proper Clause, which allows Congress to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."

"Just the mere fact that they start these discussions, that's helpful," said Sen. Mike Lee, R-Utah, who campaigned on a promise not to vote for anything that wasn't justified in the Constitution. "The extent to which they turn out to be helpful will turn on how much actual analysis takes place, because there are ways of taking the Commerce Clause and making it apply to everything. That's not new. If that's all that happens, then this isn't going to do much."

The statements are read into the Congressional Record after legislative staff figure out what should be in them. For the most part, they are short recitations of the Commerce Clause.

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