II 

113TH CONGRESS 

1ST SESSION S. 1404 

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 

JULY 31, 2013 

Mr. COBURN (for himself, Mr. PAUL, Ms. AYOTTE, Mr. BARRASSO, Mr. 

BLUNT, Mr. BOOZMAN, Mr. BURR, Mr. CHAMBLISS, Mr. COATS, Mr. 

CORKER, Mr. CORNYN, Mr. CRAPO, Mr. CRUZ, Mr. ENZI, Mrs. FISCHER, 

Mr. FLAKE, Mr. GRAHAM, Mr. GRASSLEY, Mr. HATCH, Mr. HELLER, 

Mr. INHOFE, Mr. ISAKSON, Mr. JOHNSON of Wisconsin, Mr. LEE, Mr. 

MCCAIN, Mr. MCCONNELL, Mr. MORAN, Mr. RISCH, Mr. ROBERTS, Mr. 

RUBIO, Mr. SCOTT, Mr. SESSIONS, Mr. THUNE, Mr. TOOMEY, 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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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 AND NECESSARY AND

19 PROPER CLAUSES.—Invoking a clause included in the 

20 enumerated spending clause under clause 1 of section 8 

21 of article I of the Constitution of the United States, such 

22 as the common defense clause and the general welfare 

23 clause, or the necessary and proper clause under clause 

24 18 of section 8 of article I of the Constitution of the 

25 United States in a statement of constitutionality is not 

26 sufficient to satisfy the requirement of subsection (a). 


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

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

3 United States in a statement of constitutionality for any 

4 purpose other than the regulation of the buying and sell5 ing of goods or services, or the transporting for those pur6 poses, across boundaries with foreign nations, across State 

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

8 the requirement of subsection (a). 

9 ‘‘(e) FAILURE TO COMPLY.— 

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

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

12 either House of Congress, which may be raised by 

13 any Senator during consideration in the Senate or 

14 any Member of the House of Representatives during 

15 consideration in the House of Representatives. 

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

17 point of order under this section shall not affect the 

18 availability of any other point of order. 

19 ‘‘(f) DISPOSITION OF POINT OF ORDER IN THE SEN20 ATE.— 

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

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

23 subsection (a). 

24 ‘‘(2) WAIVER.— 


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1 ‘‘(A) IN GENERAL.—Any Senator may 

2 move to waive a point of order raised under 

3 paragraph (1) by an affirmative vote of two4 thirds of the Senators duly chosen and sworn. 

5 ‘‘(B) PROCEDURES.—For a motion to 

6 waive a point of order under subparagraph (A) 

7 as to a matter— 

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

9 order shall not be in order; 

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

11 points of order under this section as to the 

12 matter shall be debatable for a total of not 

13 more than 3 hours, equally divided between 

14 the Senator raising the point of order and 

15 the Senator moving to waive the point of 

16 order or their designees; and 

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

18 order shall not be amendable. 

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

20 HOUSE OF REPRESENTATIVES.— 

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

22 of Representatives makes a point of order under this 

23 section, the Chair shall put the question of consider24 ation with respect to the proposition of whether any 

25 statement of constitutionality made under subsection 


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1 (a) was adequate or, in the absence of such a state2 ment, whether a statement is required under sub3 section (a). 

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

5 under this section made in the House of Representa6 tives— 

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

8 debatable for 10 minutes, equally divided and 

9 controlled by the Member making the point of 

10 order and by an opponent, but shall otherwise 

11 be decided without intervening motion except 

12 one that the House of Representatives adjourn 

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

14 case may be; 

15 ‘‘(B) in selecting the opponent, the Speak16 er of the House of Representatives should first 

17 recognize an opponent from the opposing party; 

18 and 

19 ‘‘(C) the disposition of the question of con20 sideration with respect to a measure shall be 

21 considered also to determine the question of 

22 consideration under this section with respect to 

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

24 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

25 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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