II 

112TH CONGRESS 

1ST SESSION S. 1248 

To prohibit the consideration of any bill by Congress unless the authority 

provided by the Constitution of the United States for the legislation 

can be determined and is clearly specified. 

IN THE SENATE OF THE UNITED STATES 

JUNE 22, 2011 

Mr. COBURN (for himself, Mr. PAUL, Mr. BARRASSO, Mr. BLUNT, Mr. BURR, 

Mr. CORKER, Mr. CRAPO, Mr. DEMINT, Mr. ENZI, Mr. GRAHAM, Mr. 

GRASSLEY, Mr. HATCH, Mrs. HUTCHISON, Mr. INHOFE, Mr. ISAKSON, 

Mr. JOHNSON of Wisconsin, Mr. KYL, Mr. LEE, Mr. MCCAIN, Mr. 

RISCH, Mr. RUBIO, Mr. SESSIONS, Mr. THUNE, Mr. VITTER, and Mr. 

WICKER) introduced the following bill; which was read twice and referred 

to the Committee on Rules and Administration 

A BILL 

To prohibit the consideration of any bill by Congress unless 

the authority provided by the Constitution of the United 

States for the legislation can be determined and is clearly 

specified. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Enumerated Powers 

5 Act’’. 


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•S 1248 IS

1 SEC. 2. CONSTITUTIONAL AUTHORITY CLAUSE. 

2 (a) IN GENERAL.—Chapter 2 of title 1, United 

3 States Code, is amended by inserting after section 102 the 

4 following: 

5 ‘‘§ 102a. Constitutional authority clause 

6 ‘‘(a) IN GENERAL.—Each Act of Congress, bill, and 

7 resolution, or conference report thereon or amendment 

8 thereto, shall contain a concise explanation of the specific 

9 authority in the Constitution of the United States relied 

10 upon as the basis for enacting each portion of the meas11 ure. 

12 ‘‘(b) FEDERAL ACTIVITIES.—To the extent that any 

13 Act of Congress, bill or resolution, or conference report 

14 thereon or amendment thereto, limits or abolishes any 

15 Federal activity, spending, or power overall, a statement 

16 of constitutionality may cite the 9th Amendment or the 

17 10th Amendment to the Constitution of the United States. 

18 ‘‘(c) ENUMERATED SPENDING CLAUSE.—Invoking a 

19 clause included in the enumerated spending clause under 

20 clause 1 of section 8 of article I of the Constitution of 

21 the United States, such as the common defense clause, 

22 the general welfare clause, or the necessary and proper 

23 clause, in a statement of constitutionality is not sufficient 

24 to satisfy the requirement of subsection (a). 

25 ‘‘(d) COMMERCE CLAUSE.—Invoking the commerce 

26 clause of section 8 of article I of the Constitution of the 


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•S 1248 IS

1 United States in a statement of constitutionality for any 

2 purpose other than the regulation of the buying and sell3 ing of goods or services, or the transporting for those pur4 poses, across boundaries with foreign nations, across State 

5 lines, or with the Indian tribes is not sufficient to satisfy 

6 the requirement of subsection (a). 

7 ‘‘(e) FAILURE TO COMPLY.— 

8 ‘‘(1) IN GENERAL.—A failure to comply with 

9 subsection (a) shall give rise to a point of order in 

10 either House of Congress, which may be raised by 

11 any Senator during consideration in the Senate or 

12 any Member of the House of Representatives during 

13 consideration in the House of Representatives. 

14 ‘‘(2) NONEXCLUSIVITY.—The availability of a 

15 point of order under this section shall not affect the 

16 availability of any other point of order. 

17 ‘‘(f) DISPOSITION OF POINT OF ORDER IN THE SEN18 ATE.— 

19 ‘‘(1) IN GENERAL.—Any Senator may raise a 

20 point of order that any matter is not in order under 

21 subsection (a). 

22 ‘‘(2) WAIVER.— 

23 ‘‘(A) IN GENERAL.—Any Senator may 

24 move to waive a point of order raised under 


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1 paragraph (1) by an affirmative vote of two2 thirds of the Senators duly chosen and sworn. 

3 ‘‘(B) PROCEDURES.—For a motion to 

4 waive a point of order under subparagraph (A) 

5 as to a matter— 

6 ‘‘(i) a motion to table the point of 

7 order shall not be in order; 

8 ‘‘(ii) all motions to waive one or more 

9 points of order under this section as to the 

10 matter shall be debatable for a total of not 

11 more than 3 hours, equally divided between 

12 the Senator raising the point of order and 

13 the Senator moving to waive the point of 

14 order or their designees; and 

15 ‘‘(iii) a motion to waive the point of 

16 order shall not be amendable. 

17 ‘‘(g) DISPOSITION OF POINT OF ORDER IN THE

18 HOUSE OF REPRESENTATIVES.— 

19 ‘‘(1) IN GENERAL.—If a Member of the House 

20 of Representatives makes a point of order under this 

21 section, the Chair shall put the question of consider22 ation with respect to the proposition of whether any 

23 statement of constitutionality made under subsection 

24 (a) was adequate or, in the absence of such a stateVerDate Mar 15 2010 01:29 Jun 28, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1248.IS S1248

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1 ment, whether a statement is required under sub2 section (a). 

3 ‘‘(2) CONSIDERATION.—For a point of order 

4 under this section made in the House of Representa5 tives— 

6 ‘‘(A) the question of consideration shall be 

7 debatable for 10 minutes, equally divided and 

8 controlled by the Member making the point of 

9 order and by an opponent, but shall otherwise 

10 be decided without intervening motion except 

11 one that the House of Representatives adjourn 

12 or that the Committee of the Whole rise, as the 

13 case may be; 

14 ‘‘(B) in selecting the opponent, the Speak15 er of the House of Representatives should first 

16 recognize an opponent from the opposing party; 

17 and 

18 ‘‘(C) the disposition of the question of con19 sideration with respect to a measure shall be 

20 considered also to determine the question of 

21 consideration under this section with respect to 

22 an amendment made in order as original text.’’. 

23 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

24 The table of sections for chapter 2 of title 1, United States 


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1 Code, is amended by inserting after the item relating to 

2 section 102 the following: 

‘‘102a. Constitutional authority clause.’’. 

3 SEC. 3. EXPLANATION OF CONSTITUTIONAL AUTHORITY. 

4 This Act is enacted pursuant to the power granted 

5 to each House of Congress to determine the rules of its 

6 proceedings under article I, section 5, clause 2 of the Con7 stitution of the United States. 

Æ 


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