The House Republican pledge to justify the constitutionality of each bill they introduce has yielded mixed results one year after the rule was instituted, with even GOP Members keeping their explanations short.
Members must submit a Constitutional Authority Statement alongside each bill they introduce, “citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution,” according to House rules.
While Members do submit the statements — the Clerk of the House will turn away their bills if they decline — hundreds of the statements on both sides of the aisle are anything but specific.
This idea was first broached in the GOP “Pledge to America,” which similarly promised to require “each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.”
The House Republican Conference website touts this as a promise fulfilled, as does PolitiFact’s “Pledge-O-Meter,” which keeps tabs on the pledge.
The conservative Republican Study Committee tracks each statement and sends out a “Questionable Constitutional Authority Statement of the Week” email highlighting what RSC member Rep. Justin Amash (Mich.) recently called on his Facebook page “an example of constitutional illiteracy or outright ignorance.”
A recent edition targeted Rep. Marcy Kaptur (D-Ohio), whose statement explaining her Democratizing the Federal Reserve System Act of 2011 was four terms long: “Article I, Section 8,” it read, referencing the enumerated powers of Congress.
“A reference to the entire section does not specifically explain the constitutional justification for a bill,” the RSC’s email read. “By the logic of this statement above, Congress has the power to do anything.”
A post on the House Rules Committee website suggests taking the extra step and citing a specific clause, such as “Article I, Section 8, Clause 3,” the Commerce Clause.
The problem is that while the RSC highlights only examples of Democrats keeping their constitutional justifications vague, Republicans do so at about an equal rate.
A tally kept by the RSC shows 616 of the more than 3,000 bills introduced in the first session of the 112th Congress listed just “Article I, Section 8.” Democrats introduced 319 of those, while Republicans sponsored 297.
As a recent example, RSC member Rep. Stephen Fincher (Tenn.), lead sponsor of the bipartisan Jumpstart Our Business Startups Act, mirrored Kaptur’s brief statement in explaining the constitutionality of his bill, which was touted by House Republican leadership and signed into law by President Barack Obama last week. The constitutional justification? “Article I, Section 8.”
The same brief explanation was given when Majority Whip Kevin McCarthy (R-Calif.) introduced the Access to Capital for Job Creators Act, which was folded into the JOBS Act.
Other Republican leaders have been careful to abide by their own rules. Speaker John Boehner’s (R-Ohio) only bill, the Scholarships for Opportunity and Results Act, cites “Clause 1 and Clause 17 of Section 8 of Article I.” But Majority Leader Eric Cantor’s (R-Va.) Repealing the Job-Killing Health Care Law Act contains a paragraphs-long explanation of its constitutionality.
Nevertheless, Boehner spokesman Michael Steel said the rule is just a start.
“The statements of constitutional authority are a start, and only a start, towards reestablishing the proper place for the federal government in American life,” he said.
Still, the RSC wants Members to do better. The emails include a section instructing Members “how to fix this statement,” usually asking that the justification be more specific.
RSC spokesman Brian Straessle defended the group’s decision to target Democrats only, saying that Members of the minority are more prone to offer the most vague definitions — for example, citing simply “Article I.” Ninety-six Democratic bills have done so while 13 Republican bills have, according to their count.
“The tallies show that Democrats are significantly more likely than Republicans to offer vague justifications like citing the entirety of Article I or citing the Necessary and Proper Clause without explaining why their proposal is both necessary and proper,” Straessle said. “That being said, obviously we can all do a better job with these — which is the entire reason we’re highlighting this information in the first place.”
Forty-nine Democratic bills and 20 Republican bills have cited “Article I, Section 1,” which generally grants legislative powers to Congress, while Article I, Section 8, Clause 18, the Necessary and Proper Clause, received mention in 182 Democratic bills and 140 Republican pieces of legislation.
Democrats counter that they turn in the statements and the House parliamentarian approves them, even if they do not exactly urge their Members to go above and beyond for the Republican-created rule.
“Republicans have created the rules for this Congress and House Democrats are meeting the rules completely,” said Ellis Brachman, spokesman for House Democratic Caucus Chairman John Larson (Conn.). “Members routinely work with the parliamentarian and the legislative counsel to pass bills, and this is meeting the rules by their standards.”
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.