July 6, 2012

 
Questionable Constitutional Authority Statement
 
of the Week


  • Bill: H.R. 6076, To amend the Fair Labor Standards Act to provide for the calculation of the minimum wage based on the Federal poverty threshold for a family of 2, as determined by the Bureau of the Census.
  • Introduced by: Rep. Al Green (D-TX)
  • Constitutional Authority Statement:
             “Commerce Clause (Art. 1 sec. 8 cl. 3)
               Necessary and Proper Clause (Art. 1 sec. 8 cl. 18)
               Constitutional analysis is a rigorous discipline which goes far beyond the text of the Constitution, and requires knowledge of case law, history, and the tools of constitutional interpretation. While the scope of Congress' powers is an appropriate matter for House debate, the listing of specific textual authorities for routine Congressional legislation about which there is no legitimate constitutional concern is a diminishment of the majesty of our Founding Fathers' vision for our national legislature.

Why this is an inadequate explanation: Beginning with the only positive aspects of this explanation, it is worth noting that the statement does begin with a reference to two specific clauses of the Constitution, and that the Necessary and Proper clause was used here in conjunction with a power granted to Congress by the Constitution.  This reference raises an interesting question, though, as some may legitimately disagree with the current scope of the Commerce Clause.  These people might argue that, in spite of U.S. v. Darby, the Constitution does not actually justify this legislation under a plain reading of the powers granted to Congress.  As the statement itself goes on to point out, “the scope of Congress' powers is an appropriate matter for House debate,” and providing for such a discussion was exactly the purpose of the Constitutional Authority Statements.  

Unfortunately, this “explanation” turns out to be an intentional lack thereof.  Instead of fulfilling its own stated purpose of thoroughly explaining the constitutional authority for the law, this Constitutional Authority Statement so deliberately attempts to avoid justifying the legislation that it ultimately rebels against its own existence.

In its first attempt to avoid the responsibility of explaining the constitutional basis of the proposed law, the statement attempts to explain how impossibly exhausting a job it is to read and understand the Constitution, as if it may as well be written in Sanskrit.  The most interesting part of this explanation is the insistence that constitutional analysis requires not merely knowledge of the case law, history, and text of the Constitution, but additionally requires the “tools of constitutional interpretation.”  Unfortunately the statement fails to explain these magical tools, and a search on how to acquire them proved fruitless.  It should be reasonable to conclude, however, that they might not be absolutely necessary for a Member of Congress to read the Constitution and attempt to follow it.

Lastly there is the coup de grâce for any semblance of constitutional seriousness with the conclusion of the statement: “the listing of specific textual authorities for routine Congressional legislation about which there is no legitimate constitutional concern is a diminishment of the majesty of our Founding Fathers' vision for our national legislature.”  First, this assumes the legislation to be above constitutional questioning, going so far as to suggest that there cannot be a single “legitimate constitutional concern” about the “routine Congressional legislation” in question.  As we have not yet acquired the tools of constitutional interpretation, we cannot positively remark on the merits of this argument, but suffice it to say that if the justification is so obvious, then a simple explanation ought not be too difficult to provide.  Second, though, the statement suggests that the Founding Fathers would be horrified at the thought of Members of Congress being asked to actually explain how their proposed legislation comports with the highest legal document that the Founders themselves wrote and ratified.  However, it is difficult to imagine how Members of Congress being asked to explain how their legislation comports with the rule of law results in a “diminishment of the majesty of our Founding Fathers' vision for our national legislature.”

How to fix this statement: As this bill is somehow an example of “routine Congressional legislation about which there is no legitimate constitutional concern,” a short explanation proving this to be the case should suffice.

**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.