Questionable Constitutional Authority Statement
of the Week
- Bill: H.R. 1740, H.R. 1858, H.R. 1879, H.R. 2042, H.R. 2094, H.R. 2131, H.R. 2912, H.R. 2972, H.R. 3052
- Introduced by: Rep. Rick Larsen (D-WA)
- Constitutional Authority Statement:
“Under Article 1, Section 2 of the Constitution, ``the House of Representatives shall be composed of Members chosen every second Year by the People of the several States.'' As described in Article 1, Section 1 ``all legislative powers herein granted shall be vested in a Congress.'' I was elected in 2010 to serve in the 112th Congress as certified by the Secretary of State of Washington state.
Article III, Section 2 states that the Supreme Court has ``the judicial power'' that ``shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States.'' Article II, Section 1 of the Constitution provides that the Supreme Court is the supreme law of the land when stating ``The judicial power of the United States, shall be vested in one supreme Court.''
The power of judicial review of the Supreme Court was upheld in Marbury v Madison in 1803, giving the Supreme Court the authority to strike down any law it deems unconstitutional. Members of Congress, having been elected and taken the oath of office, are given the authority to introduce legislation and only the Supreme Court, as established by the Constitution and precedent, can determine the Constitutionality of this authority.”
Why this is an inadequate explanation: This statement intentionally refuses to constitutionally justify the legislation, which many would argue is not the strongest method of providing a bill's constitutional justification. For starters, then, this Constitutional Authority Statement is inadequate because it intentionally refuses to do its own job.
The statement quoted above shows a brazen refusal to take note of the Constitution during the legislative process, and an insistence upon the idea that only one branch of the government should be concerned with following our foundational document. Such a claim either ignores or is at odds with the very oath taken by all Members of Congress. Intentionally ignoring the Constitution in the hopes that another branch of government will catch the errors that result is not a legitimate method of attempting to “support and defend the Constitution of the United States.” This oath taken by every Member of Congress, after all, does not read “I, [name], do solemnly swear that I will allow the Supreme Court to support and defend the Constitution against my possible actions to the contrary."
It is true that the Supreme Court has upheld the power of judicial review since Marbury v. Madison. However, this fact does not give Congress the right to ignore its own granted powers and limits and force the Supreme Court to play constitutional whack-a-mole with every bill signed into law. This Constitutional Authority Statement would instead suggest that the legislative and executive branches of government should act without any regard to their constitutional powers and limits until they happen to be prevented from doing so by the Court. Even ignoring the impossible logistical nightmare that this method of lawmaking would pose on the Supreme Court, there is a deeper reason that this idea is problematic: the Congress is entrusted with the job of passing legislation while faithfully preserving the Constitution of the United States—and an acknowledgement by Members of Congress of the Constitution’s limitations on the Congress is a useful first step in this regard. This Constitutional Authority Statement fails to realize the importance of lawmakers’ attempting to comport with our highest legal document, and as a result misses the statement’s entire purpose in the first place.
In short, this Constitutional Authority Statement appears to rebel against its own existence. In so doing, it thoroughly fails to provide a legitimate basis for the legislation it purports to justify. This statement takes the job of attempting to provide even a basic constitutional basis for the legislation, and suggests instead that somebody else should do so. It is hard to imagine a more inadequate Constitutional Authority Statement than that.
How to fix this statement: For starters, the statement should seek to present a constitutional justification for the proposed laws. It should at the very least cite a relevant clause which grants the federal government the authority to pass the proposed legislation, and then should explain why the cited clause(s) justify the legislation that has been proposed.
**Disclaimer: The RSC does not necessarily support or oppose the bills listed in these weekly emails;
rather, the bills are selected strictly based on the structure and seriousness of their Constitutional Authority Statements**
-To read the current House Rule on Constitutional Authority Statements, click here, and find Rule XII, Section 7(c).
-The Heritage Foundation has created an online guide to the Constitution, which provides an explanation and discussion of every clause. To see this online guide, go here.
-To see previous “Questionable Constitutional Authority Statements,” as well as advice for drafting your office’s Constitutional Authority Statements, go here.
RSC Staff Contacts for these weekly emails: Rick.Eberstadt@mail.house.gov and Paul.Teller@mail.house.gov.