Constitutional Authority Statements and the Powers of Congress: An Overview
Released: 2019-03-11T00:00:00

Introduction

On January 5, 2011, the House of Representatives adopted an amendment to House Rule XII to require that Members of the House state the constitutional basis for Congress's power to enact the proposed legislation when introducing a bill or joint resolution. (The amendment does not pertain to concurrent or simple resolutions.) The Constitutional Authority Statement (CAS) rule, found at House Rule XII, clause 7(c), was subsequently adopted in the 113th, 114th, 115th, and 116th Congresses. As the CAS rule begins its ninth year, the requirement continues to be a topic of congressional debate and inquiry, as Members of the House contemplate how to comply with the rule prior to every submission of a bill or joint resolution.

This report aims to aid in understanding the CAS requirement. It begins by providing a broad overview of (1) Congress's powers under the Constitution and (2) Congress's role in interpreting this document. The report then specifically addresses House Rule XII, clause 7(c), discussing its key requirements and limits, the legal effect of a CAS, and the debate over the rule's value. The report concludes by discussing trends with regard to the House's recent CAS practices and by providing considerations for congressional personnel drafting CASs. The report contains two tables: Table 1 identifies the constitutional provisions most commonly cited in CASs during the last six months of the 114 th and 115 th Congresses, and Table 2 lists suggested constitutional authorities for various types of legislation.

Scope of Congress's Powers Under the Constitution

Understanding the purpose and logic of the CAS rule first requires an understanding of both the powers provided to the Congress under the Constitution and Congress's role in interpreting the Constitution. The Framers of the Constitution feared tyranny as the result of the "accumulation of all powers" of government "in the same hands" and, thus, "sought to guard against it by dispersing federal power to three interdependent branches of Government." Reflecting this fear, the federal Constitution divides the government's power among the legislative, executive, and judicial branches, with the Congress exercising the legislative power, the President exercising the executive power, and the federal courts exercising the judicial power. "It is a breach of the National fundamental law" if Congress "gives up its legislative power" to one of the other branches or if Congress "attempts to invest itself or its members with either executive power or judicial power."

While only Congress may exercise the legislative power, this power, like those belonging to the other branches of the federal government, is cabined by the terms of the Constitution. Article I, Section 1, of the Constitution vests "all legislative Powers herein granted ... in a Congress of the United States," with the phrase "herein granted" indicating that the Congress's authority to legislate is "confined to those powers expressly identified in the document." As a result, the Supreme Court has interpreted Article I's Vesting Clause as creating a Congress of specified or "enumerated powers." As the Court noted in United States v. Morrison , "[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution."

Congress's Powers

Congress's specified powers are primarily, but not exclusively, found in Section 8 of Article I of the Constitution. This section contains 18 clauses, 17 of which enumerate relatively specific powers granted to the Congress. Among the powers enumerated are Congress's powers to

impose taxes, and spend the money collected to pay debts and provide for the "common defence" and "general welfare," regulate commerce, establish laws respecting naturalization and bankruptcy, regulate currency, establish post offices and roads, promote the "Progress of Science and useful Arts" by giving authors and inventors "exclusive rights" to their writings and discoveries (i.e., copyright and patent protections), and establish a judicial system.

In addition, six of the clauses in Article I, Section 8, defining the substantive legislative jurisdiction of Congress, deal exclusively with wartime and military matters and include Congress's power to declare war and provide for an Army and Navy.

Outside of Article I, Section 8, the Constitution contains several other provisions providing Congress with a specified power. For example, Article IV of the Constitution empowers Congress to enact laws regulating the validity of state "public Acts, Records, and judicial Proceedings" and rules respecting the territory and property belonging to the United States. And Article V authorizes Congress to propose amendments to the Constitution. Outside of the original constitutional text, many of the amendments to the Constitution explicitly restrict the power of Congress. Several of the Constitution's amendments, however, provide Congress with the power to enact certain legislation. For instance, the Thirteenth, Fourteenth, and Fifteenth Amendments, adopted following the Civil War, empower Congress to "enforce" the amendments' provisions prohibiting slavery, preventing the deprivations of certain civil rights, and outlawing the denial or abridgement of the right to vote on account of "race, color, or previous condition of servitude."

The final clause of Article I, Section 8, the Necessary and Proper Clause, supplements Congress's enumerated powers, providing the legislative branch the power to adopt measures that assist in the achievement of ends contemplated by other provisions in the Constitution. Specifically, that clause provides Congress with the power to make "all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The Supreme Court has interpreted the scope of Congress's power under the Necessary and Proper Clause as "broad," in that the clause leaves to "Congress a large discretion as to the means that may be employed in executing a given power." In so holding, the Court has described the clause as providing the "broad power to enact laws that are 'convenient, or useful' or 'conducive' to" a more specific authority's "beneficial exercise." Consistent with this view, the Court has upheld legislation criminalizing perjury and witness tampering as an extension of Congress's power to constitute federal tribunals. Similarly, the Court upheld legislation prohibiting the bribery of officials who receive federal funds, as an extension of Congress's power to "appropriate federal moneys to promote the general welfare." More broadly, the Court has taken the view that other powers, such as the power to conduct oversight, are implied from the general vesting of legislative powers in Congress.

Importantly, however, the Necessary and Proper Clause is not an independent source of power for Congress that, standing in isolation, permits it to exercise the legislative power. As the Supreme Court has noted, the clause is "not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out the specifically granted 'foregoing' powers of § 8 'and all other Powers vested by this Constitution....'" Instead, in legislating, Congress "must rely upon its independent (though quite robust) Article I, § 8, powers" or in other powers implicitly or explicitly vested elsewhere in the Constitution to Congress. Importantly as well, the Necessary and Proper Clause authorizes Congress to not only take action to assist in the execution of its own powers under the Constitution, but also to provide support for the execution of "all other Powers vested by this Constitution in the Government of the United States." Pursuant to this authority, Congress may permissibly enact legislation to assure the proper exercise of powers given to other branches of the federal government.

Limits on Congress's Powers

The Constitution imposes two central types of limitations on the powers of Congress. First, the concept of enumerated powers creates what is often referred to as an "internal limit" on Congress's powers—that is, Congress's powers are restricted by and to the terms of their express grant. For instance, in United States v. Lopez , the Supreme Court interpreted the Commerce Clause as empowering Congress to regulate "three broad categories of activities": (1) "channels of interstate commerce," like roads and canals; (2) "persons or things in interstate commerce," and (3) activities that substantially affect interstate commerce. Having determined those limits to the clause, the Court held that Congress's power over commerce does not permit it to enact legislation prohibiting the possession of guns near a school (absent a connection to commercial activity) because such legislation does not regulate an economic activity that substantially affects interstate commerce. Likewise, the Court has interpreted the Fourteenth Amendment's Enforcement Clause as necessarily requiring a "congruence and proportionality" between the injury to be prevented or remedied by congressional legislation and the means that Congress adopted to that end. Applying this standard in City of Boerne v. Flores , the Court held that Congress exceeded the scope of its enforcement power under the Fourteenth Amendment by enacting the Religious Freedom Restoration Act (RFRA) insofar as that law unduly invaded the sovereign rights of the states. Adopted to protect the constitutional right to the free exercise of religion, RFRA, in relevant part, invalidated any state law that imposed a "substantial burden" on a religious practice without sufficient justification and narrow tailoring. Describing RFRA's operative standard as imposing a "stringent test" that amounted to a "considerable intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens," the Court concluded that there was "a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved" by RFRA.

Second, beyond the internal limits on Congress's powers, the Constitution also imposes "external" constraints on congressional action, or affirmative prohibitions found elsewhere in the text or structure of the document. Article I, Section 9, lists specific constraints on the power of the federal government. Section 9 prohibits Congress from suspending the writ of habeas corpus in peacetime; passing bills of attainder or ex post facto laws; imposing taxes or duties on exports "from any state"; and granting titles of nobility. Section 9 also provides that Congress can suspend the writ of habeas corpus only in "cases of rebellion or invasion" when "public safety may require" such a suspension. Similarly, money can be drawn from the Treasury only upon an appropriation made by law.

More broadly, Congress's powers are constrained by three principles undergirding the Constitution: federalism, separation of powers, and individual rights. Federalism constraints are grounded in states' status as separate and distinct sovereign entities and seek to preserve states' retained prerogatives under the U.S. constitutional system by enforcing certain limits on the federal government's jurisdiction. For instance, the Supreme Court has identified federalism-based constraints stemming from the Tenth Amendment—the provision of the Bill of Rights that reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." More specifically, the Court has interpreted the Tenth Amendment to prevent the federal government from "commandeering" or requiring state executive officers or state legislators to carry out federal directives. Similarly, the Court has held that Congress cannot indirectly commandeer state governments by imposing limits on monetary grants that go so far as to functionally coerce states, leaving them with no choice but to comply with a federal directive.

Second, separation of powers constraints are concerned with the proper allocation of authority among the three branches within the federal government. The Constitution assigns each branch of government distinct, but interrelated, roles, and one branch may not aggrandize its power by attempting to exercise powers assigned to another branch. For example, the Appointments Clause of the Constitution gives the President the authority to appoint principal officers of the United States with the Senate's advice and consent. Thus, when Congress purported to reserve to itself the right to appoint certain members of the Federal Election Commission in 1971, the Supreme Court struck down that law as being in violation of the Appointments Clause.

Finally, constraints based on individual rights serve to prohibit congressional interference with the rights that individuals retain under the Constitution and, in particular, under the first 10 amendments to the Constitution, the Bill of Rights. The First Amendment, for example, prohibits Congress from enacting a law that abridges the freedom of speech. The Supreme Court has interpreted the First Amendment to mean that speech restrictions promulgated as a result of the content of the speech are presumptively unconstitutional. In keeping with this presumption, in United States v. Alvarez , the Court struck down a law that made it a crime to falsely claim that one had received military medals or decorations on the grounds that the law risked "significant First Amendment harm" by broadly empowering prosecutions of speech based on its content, without any notable limitations.

Role of Congress in Interpreting the Constitution

Given the powers of Congress and the limits on those powers under the Constitution, the question remains as to which branch of the federal government may interpret the scope of Congress's powers. The question is one that has been debated from the very beginnings of the country. In its 1803 decision in Marbury v. Madison, the Supreme Court held that the logic of having a written Constitution that enumerates the legal limits imposed on the federal government, coupled with the tenure protections provided to the federal judiciary under the Constitution, confirmed the Supreme Court's role in interpreting the Constitution and invalidating acts of other branches of government that contravene this document in the context of a live case or controversy. Pursuant to Marbury ' s famous command, it is "the province and duty of the judicial department to say what the law is."

While Marbury firmly established that the judicial branch has a role in interpreting the Constitution, including the power to strike down laws held to be incompatible with the founding document, it did not, however, expressly state that the judiciary has a final or even exclusive role in defining the basic powers and limits of the federal government. To the contrary, the early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation, with Congress and the Executive openly questioning the Supreme Court's pronouncements on constitutional law, such as the Court's rulings on the National Bank or slavery. As these examples show, Marbury was not seen to interfere with the ability of either Congress or the President to interpret the Constitution. Rather, Marbury only asserted the judiciary's power to act as the ultimate expositor of the Constitution in the limited context of cases that were properly before the Court. Instead, Thomas Jefferson's view that "each of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves under a similar question," appears to have prevailed in Congress during the early days of the United States. This is evidenced by the fact that Members of Congress spent "a considerable amount of time" "debating the constitutional limitations on" legislation during the first 100 years of the nation.

In the mid-20 th century, however, the Supreme Court began articulating a theory of judicial supremacy, wherein the Court no longer shared its role in interpreting the Constitution with the other branches of the federal government, but rather characterized its role as being the preeminent arbiter of the Constitution's meaning. For example, in Cooper v. Aaron, the Court read Marbury as "declaring the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and [this] principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system." In other words, the Cooper Court concluded that the "interpretation[s] of the [Constitution] enunciated by this Court ... [are] the supreme law of the land," with constitutional interpretations by other actors, including Congress, necessarily lacking the same force. Supporters of the judicial supremacy view assert that it promotes stability and uniformity in constitutional interpretation, as well as preserves constitutional norms from majoritarian pressures. The Court's decision in Cooper , coupled with broader institutional factors that may further constrain Congress's ability to engage in constitutional interpretation, has provided support for the notion of judicial supremacy in constitutional interpretation within the coordinate branches of government. As a result, while Congress certainly continues to debate about the Constitution during the legislative process, in the modern era, the Court's views on the Constitution appear to have taken on an elevated role vis-á-vis those views of the other branches of government.

The theory of judicial supremacy is far from a consensus view, however, and several aspects of the American constitutional system may counsel for a more robust role for Congress in constitutional interpretation. In recent decades, a number of legal scholars and government officials have criticized the judicial supremacy view, instead advancing the view that the Constitution should more regularly be the subject of interpretation by those outside of the judicial branch. This view posits that Congress and others outside of the government possess independent and coordinate authority to interpret the Constitution. Supporters of this view point to the fact that the Constitution requires all Members of Congress to "be bound by Oath or Affirmation ... to support [the] Constitution ... ," a requirement that presumes Senators and Representatives must understand and interpret the Constitution in their work in Congress. Similarly, courts' practice of affording a presumption of constitutionality to laws passed by Congress necessarily assumes that Members of Congress engage in constitutional interpretation during the legislative process. In addition, if Congress opts not to engage in interpreting the Constitution, a vacuum could arise in constitutional dialogue because various judicially crafted doctrines generally serve to keep the courts from making pronouncements on a wide range of constitutional questions. Indeed, as Justice Kennedy observed in his concurring opinion in Trump v. Hawaii, because there are "numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention," it is "imperative" for public officials to "adhere to the Constitution and to its meaning and promise." These arguments can be seen as relevant to the current CAS requirement imposed under the House rules insofar as they suggest that Congress should have some role in interpreting the Constitution.

House Rule XII, Clause 7(c), and Constitutional Authority Statements

Originally adopted as an amendment to House Rule XII on January 5, 2011, the CAS rule prohibits Members from introducing a bill or joint resolution without a "statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution." The current CAS rule functionally replaced a requirement that existed during the 105th through 111th Congresses, mandating that committee reports for bills reported out of committee "include a statement citing the specific powers granted to the Congress in the Constitution to enact the law proposed by the bill or joint resolution." A CAS is not part of the text of the legislation; instead, it "accompanie[s]" the legislation. The CAS must be "submitted at the time the bill or joint resolution" is presented for introduction and referral, that is, when the legislation is dropped in the "hopper." The submitted CAS appears in the Congressional Record and is published electronically on Congress.gov.

Compliance with the CAS Rule

While the rule, on its face, requires Members to provide as "specific[] as practicable" "a statement citing ... the power or powers to Congress in the Constitution to enact the bill or joint resolution," the CAS rule itself is silent on various issues. For example, the rule does not prescribe any particular format or level of detail for CASs. The House Committee on Rules (Rules Committee) provided guidance soon after the rule was adopted, identifying the following five examples of citations to constitutional authority:

1. "The constitutional authority on which this bill rests is the power of Congress to make rules for the government and regulation of the land and naval forces, as enumerated in Article I, Section 8, Clause 14 of the United States Constitution." 2. "This bill is enacted pursuant to Section 2 of Amendment XV of the United States Constitution." 3. "This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 3 of the United States Constitution." 4. "The Congress enacts this bill pursuant to Clause 1 of Section 8 of Article I of the United States Constitution and Amendment XVI of the United States Constitution." 5. "This bill makes specific changes to existing law in a manner that returns power to the States and to the people, in accordance with Amendment X of the United States Constitution."

This guidance suggests that compliant CASs should generally discuss the affirmative constitutional authority that empowers Congress to enact particular legislation, but need not discuss any external constraints on Congress's powers to enact the legislation. For example, under this guidance, a CAS for a bill that proposed to ban all interstate shipments of religious pamphlets could be seen as compliant if it cited the Commerce Clause as the source of congressional power, even though the bill may run afoul of the Free Exercise and Free Speech Clauses of the First Amendment. Nonetheless, the last example provided by the Rules Committee suggests that a citation to a provision of the Constitution that does not explicitly grant power to the Congress—such as the Tenth Amendment, which preserves the powers of the states —may suffice to comply with the rule. More broadly, the Rules Committee guidance indicates that Members have significant discretion in determining whether particular CASs comply with the rule. The Rules Committee guidance notes that it is ultimately "the responsibility of the bill sponsor to determine what authorities [he or she] wish[es] to cite and to provide that information to the Legislative Counsel staff."

In practice, outside commentators have noted that Members have generally complied with House Rule XII, clause 7(c). Such observations may be the result of how the rule is enforced. The Rules Committee has noted, "The adequacy and accuracy of the citation of constitutional authority is a matter for debate in the committees and in the House." This statement suggests that the CAS rule is enforced only insofar as "the House clerk ... acts to verify that each bill has a justification" and "not [in judging] the adequacy of the justification itself."

Studies of CAS Practices

Practices with Regard to Specificity

Studies of past practices under House Rule XII, clause 7(c), support the view that Members have considerable leeway and discretion in crafting CASs. Professor Hanah Volokh of Emory University conducted a study of CAS practices early in the 112 th Congress, aggregating more than 1,700 statements submitted during the first four months of 2011. According to Professor Volokh, a "handful" of these CASs "engage[d]," in her opinion, "in a thorough and highly detailed explanation of the constitutional ramifications of the proposed legislation" by discussing the Federalist Papers or Supreme Court doctrine, among other things. The remainder, however, were less specific in their identification of Congress's powers. For example, 8% of the statements reviewed by Professor Volokh generally cited Article I, Section 8–without providing any further specificity as to the particular clauses within that section providing constitutional support for the proposed legislation. A study of the CASs for "every bill and joint resolution introduced" from January 5, 2011, to January 5, 2012, of that same Congress reported similar findings. According to the House Republican Study Committee, 15% of submitted CASs relied on Article I, Section 8 alone.

In preparing various versions of this report, CRS conducted a similar study of CASs from the 114th and 115th Congresses. First, in 2017, CRS staff examined the 937 statements submitted between July 1, 2016, and January 1, 2017, consisting of 13 joint resolutions and 924 bills. In 2019, CRS staff examined 1,110 statements submitted between July 1, 2018, and January 2, 2019, consisting of 10 joint resolutions and 1,100 bills. Most commonly, in 58% of cases, the CAS cited to a specific clause in Article I, Section 8, such as the Taxing and Spending Clause or the Commerce Clause. Few submitted CASs consisted of more than a bare citation to an affirmative power granted to Congress in the Constitution. For example, four CASs examined from 2016 and six CAS examined from 2018 explicitly discussed Supreme Court case law that purportedly support the bill or joint resolution. Forty-four of the statements from 2016 and thirteen statements from 2018 cited to provisions of the Constitution that constrain rather than empower Congress or one of the other federal branches, such as the restrictions in Article I, Section 9 or the Bill of Rights. Few CASs went beyond the scope of the rule to detail why the constitutional provision cited empowers Congress to enact the proposed legislation.

In line with the studies on CASs in the 112 th Congress, CRS found that numerous statements submitted during the sample periods contained general, rather than specific, references to the Constitution. As Table 1 below indicates, the most frequent citation in CASs accompanying recent legislation was a general reference to Article I, Section 8, of the Constitution. This occurred in 30% of all CASs during the 2016 sample period and 33% of all CASs during the 2018 sample period, a marked increase from the House Republican Study Committee and Volokh studies of the 112 th Congress. Similarly, the sixth and ninth most frequently cited constitutional provision in submitted statements during the respective sample periods was even broader: a general reference to Article I of the Constitution.

Practices with Regard to Particular Clauses

Beyond CAS practices with regard to specificity, the sample of recently submitted Rule XII statements is also noteworthy in that it highlights the specific clauses of the Constitution that Members have most frequently relied upon in submitted CASs. In particular, numerous recently submitted CASs are notable in that the statements raise certain questions about how a particular clause has been interpreted, both as a matter of historical practice and by the courts, and how that same clause is being cited by the relevant CAS. Among the most prominent examples of CASs that could be seen as adopting an interpretation of the Constitution that potentially diverges from historical understandings or judicial interpretations of a particular clause include statements that cite to the following clauses:

Necessary and Proper Clause : One of the most frequently cited clauses in recent CASs was the Necessary and Proper Clause, which allows Congress to "make all Laws which shall be necessary and proper for carrying into Execution" the powers enumerated in Article I and "all other Powers vested by [the] Constitution in the Government of the United States, or in any Department or Officer thereof." About a quarter of all CASs in the CRS studies contained a citation to that clause, with 14% of the 2016 CASs and 19% of the 2018 CASs citing the Necessary and Proper Clause as the sole power to enact the underlying legislation. Citations to the Necessary and Proper Clause in isolation could be seen as somewhat anomalous, as that clause has never been viewed by the Court or by the Framers of the Constitution as a general source of power for Congress to do whatever is "necessary and proper." Instead, "[w]hile the Necessary and Proper Clause authorizes congressional action 'incidental to [an enumerated] power, and conducive to its beneficial exercise,'" it does not provide Congress with "great substantive and independent power." General Welfare Clause: The General Welfare Clause refers to a specific phrase contained within the language in Article I, Section 8, clause 1 empowering Congress to enact certain taxes and spend the money collected from taxation. Specifically, the first clause of Section 8 of Article I affords Congress the power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States .... " In CRS's studies, the Taxing and Spending Clause was the third most frequently cited clause by CASs. Not infrequently, a citation to this clause—commonly described in CASs as the "General Welfare Clause"—was used for legislation unrelated to the spending of money by the federal government. Importantly, the phrase "general Welfare" does not exist in isolation in the clause, which might otherwise empower Congress to enact laws that broadly promote the general welfare of the nation. Instead, the phrase "general Welfare" in Article I, Section 8, clause 1, is tied to the preceding language in the clause regarding the raising of revenue, and thus requires Congress to spend the money it collects from taxation to promote the general welfare. While this power is considerable, it is necessarily tied to spending legislation. Military Regulation Clause: The constitutional provision affording Congress with the power to "make rules for the Government and Regulation of the land and naval forces" is another frequently cited clause in recent CASs. Several of the bills to which such CASs are attached, however, do not purport to regulate the United States' armed forces, but instead prescribe broad regulations for the government as a whole. Such references to the Military Regulation Clause appear to stem from reading the first phrase of the clause—"make rules for the Government"—in isolation from the rest of the clause, as an independent power. However, such an understanding of the clause is inconsistent with traditional interpretations of the scope of that clause, which view it as solely related to Congress's power over the military. This interpretation also runs contrary to traditional rules of legal interpretation that counsel for reading phrases in a legal text in their context and not in isolation from the rest of the text. More broadly, interpreting the Military Regulation Clause to allow Congress to direct the actions of the federal government generally in whatever manner Congress wishes would arguably transform the clause from a narrow power, confined to matters related to the armed forces, to an open-ended police power, something otherwise rejected by the Framers of the Constitution. Appropriations Clause: A number of recent CASs cite provisions in Article I, Section 9, including several CASs that cite the Appropriations Clause as the authority for Congress to provide money for a particular project. The Appropriations Clause states, in relevant part, that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Like other provisions found in Section 9 of Article I, this clause generally has not been interpreted to grant Congress any affirmative power. Instead, in keeping with other provisions in Section 9, the Appropriations Clause has been seen to function as a restriction on the powers of the federal government. Specifically, the Appropriations Clause ensures that when the federal government spends money, "the payment of money from the Treasury must be authorized by a statute." It thus serves as an affirmative restriction on the power of the Executive and makes Congress's "power over the purse" exclusive in nature. As discussed above, Congress's power to spend money derives from the Taxing and Spending Clause. Bill of Rights: While not among the most frequent citations in CASs, occasionally one of the first 10 amendments to the Constitution—the Bill of Rights—has been cited in support of Congress's power to enact legislation. Congress may certainly have an interest in protecting the rights listed in the Bill of Rights, but it should be noted that the first 10 amendments to the Constitution do not themselves empower Congress to take any action, and they instead consist of "negative rights" protecting individuals from certain government conduct. The Bill of Rights often prohibits congressional action. As a result, if a sponsor proposes legislation intended to support individual liberties protected by the Constitution, the CAS for such legislation could instead rely on an affirmative power of the Congress, such as the powers provided in Article I, Section 8 of the Constitution. Another alternative would be the enforcement power of the Fourteenth Amendment, which the Supreme Court has held allows "Congress [to] enact so-called prophylactic legislation" aimed at "prevent[ing] and deter[ing] unconstitutional conduct." Nonetheless, it should be noted that the House Rules Committee has suggested that a citation to a provision of the Constitution that does not explicitly grant power to Congress may suffice to comply with the CAS rule. For example, a Member seeking to rescind or narrow the scope of an existing law could arguably believe it appropriate to identify constitutional principles found in the Bill of Rights or elsewhere that the Member believes are advanced by the proposed legislation.

Legal Implications of a CAS

CASs have limited legal import, in that the CAS of a bill enacted into law will likely not alter a court's view of the constitutionality of the legislation. At bottom, a CAS is a statement by one Member of Congress (i.e., the sponsor) when a piece of legislation is introduced. It is not formally part of a bill or joint resolution. Therefore, even if the underlying legislation is enacted into law, the CAS would have no formal legal effect because the CAS was not subject to the approval of both houses of Congress, or presented to the President, as is required by Article I, Section 7. Instead, CASs are a type of legislative history material that describes the initial thoughts of a single Member as to Congress's power to enact the bill. In this sense, one might view a CAS as akin to an isolated statement in the Congressional Record or a statement issued by the sponsor of a bill, which courts generally regard as "weak" forms of legislative history when considering Congress's intent in passing a law.

In practice, in the few court cases that cite to a law's CAS, the underlying statement is mentioned merely in passing and had no apparent effect on the decision, as courts have independently evaluated the constitutionality of the legislation in question notwithstanding the existence of the CAS. This practice is in keeping with broader principles of constitutional law as adopted by the courts. One such principle holds that Congress generally may not independently and without further scrutiny in the context of a case or controversy before a court define its own powers under the Constitution. Another principle holds that an otherwise unconstitutional law will not be found to be permissible by a court merely because Congress believes the provision to be within its powers.

Debate over the Rule

Given the seeming ease of compliance with House Rule XII, clause 7(c) , and the tendency of some CASs to cite to general or arguably inapplicable provisions of the Constitution, questions might be raised about the desirability of the CAS rule. Critics have argued for its repeal, contending that the rule is symbolic and has little impact on congressional debate or dialogue about Congress's authority under the Constitution. In addition, some have asserted that Congress lacks the institutional capacity to interpret the Constitution, and the CAS rule demonstrates this insofar as there have been few meaningful debates in Congress over the scope of Congress's powers under the rule. Others contend that the administrative costs of complying with the rule outweigh any benefits from the CAS requirement.

On the other hand, proponents characterize House Rule XII, clause 7(c), as an extension of the broader debate over Congress's role in interpreting the Constitution, providing a limited means by which Members of Congress may expressly engage in constitutional interpretation. As one commentator notes, "[f]undamentally, a [CAS] is a congressional interpretation of the Constitution," and supporters of the rule see several benefits to having the House of Representatives engage in a limited form of constitutional interpretation through the submission of CASs. According to the rule's proponents, statements submitted under House Rule XII are a "simple and straightforward self-monitoring mechanism" to ensure that Congress does not "usurp" powers not granted to it in the Constitution. In this sense, according to its proponents, the CAS rule serves to remind Members of the limits on Congress's institutional power.

Additionally, supporters of House Rule XII, clause 7(c), argue that the rule enhances constitutional dialogue outside of the judiciary and promotes constitutional literacy within Congress by formally requiring Members to engage in even limited constitutional interpretation when introducing legislation. According to one commentator, the CAS rule could

provide a foundation for a new sense within ... [Congress] ... that there is both reason and need for its members to develop deeper and broader understandings of the Constitution and constitutional interpretation—in the direction of Congress becoming ... not only a co-equal branch of the federal government, but a co-equal interpreter of the federal Constitution, if not more.

Proponents of the rule have further contended that the rule could enhance the institutional credibility and reputation of Congress by making clear to constituents that Members "take seriously the constitutionality of their actions." According to one former Member,

Congress's reputational problems partially relate to a belief that Congress is not really debating or deliberating in good faith but is simply retreating to partisan battle lines. This concern has been exacerbated by Congress abdicating and leaving to the courts its historical responsibility to consider constitutionality on its own. In this respect, the House Rule ... is a foot in the door. Under the House Rule, all members of the House are required, essentially for the first time, to take at least one aspect of their obligation to consider constitutionality more seriously.

Nonetheless, even among proponents of the rule, informal suggestions have been made to improve the constitutional dialogue surrounding CASs. Among the primary changes proposed are the following:

Enhancing the Content of CASs: Prompted by criticisms about how "thin many of [the CASs] are," some have suggested that the House rules be altered to require more formal and robust debate over the constitutionality of proposed legislation. One proposal called for time to be set aside for formal debate on the House floor about the constitutionality of legislation upon the motion of a single Member. Other proposals focus on changing the content of the CASs themselves by requiring more expansive statements that discuss the relationship between the cited provision of the Constitution and the bill itself. In addition, others have advocated that the CAS rule formally require that the statement discuss "[w]ith some depth" any "precedent germane to the authority to enact the" legislation. Finally, several commentators have proposed altering the rule so that Members must not only cite to the Constitution's affirmative grants of authority to Congress, but also discuss any potential limitations the Constitution may impose on Congress's power to legislate. Better Enforcing the CAS R ule : Given the large number of CASs that lack specificity or cite seemingly inapplicable clauses of the Constitution, supporters of the rule have argued that Members must be held accountable for ensuring that submitted CASs comply with both the letter and spirit of the requirement. One early version of the current CAS rule proposed in the 111th Congress would have deemed general citations to the "common defense clause, the general welfare clause, or the necessary and proper clause" insufficient to satisfy House Rule XII, clause 7(c). In addition, this proposal would have allowed a Member to initiate a point of order challenging the adequacy of a CAS, thereby subjecting the measure to a short debate that would resolve whether the submitted statement complied with House Rule XII. Others have urged that the Clerk of the House or a designee be empowered to "evaluate the content" of a submitted statement formally and "add a note indicating that the Statement submitted does not properly satisfy the Rule's specificity requirement." Under this proposal, any bill with such a notation could be "subject to a special privileged motion by a Member to recommit the bill for failure to follow the Rule." Changing Other Procedures Regarding CASs : Currently, the CAS focuses on a single moment: the initial introduction of a bill or joint resolution. Viewing this limitation on the use of a CAS as a shortcoming that prevents more robust constitutional debate, several proponents of the CAS rule have argued that the rule should apply during all stages of the legislative process, including during committee deliberations, so that the constitutionality of a bill or resolution is subject to broader consideration. Relatedly, because the CAS rule only applies at the beginning of the legislative process, the only Member who currently assesses Congress's authority to enact the legislation in question is the Member who introduced the legislation. In order to ensure that Members, who ordinarily must decide how to vote on another Member's bill, consider the constitutional implications of the legislation in question, some have suggested that the House rule "explicitly acknowledge" the independent "obligation" of Members to be "mindful of any constitutional objections" regarding the bill that is the subject of a vote. In what may be the broadest means to allow more Members to weigh in on the constitutional implications of a bill, at least one commentator has suggested (but ultimately rejects) changing the House rule so that the CAS is part of the text of a bill, as opposed to a statement attached to the bill. Such an approach could, at least in theory, formalize and elevate the role of the CAS because when a bill that contains a CAS in its text is put to a vote, multiple Members could potentially voice their agreement or disagreement with the bill's language assessing Congress's power to enact the underlying legislation.

Each of the proposed modifications to the CAS rule could raise new concerns, however. For example, if House Rule XII were modified to require more robust discussions of the constitutionality of a given piece of legislation throughout the legislative process, such a modification could amplify the criticisms that the CAS rule requires considerable resources to ensure compliance. Moreover, if the rule were modified to require that CASs include additional content, without any changes to its current enforcement regime, the additional requirements could, in the view of at least one commentator, be ignored.

Potential Resources and Considerations for Drafting CASs

This section of the report identifies issues that Members and congressional staffers may find useful to consider when assessing whether and how a constitutional provision may provide a source of authority for legislation. First, the section notes available resources that may aid in interpreting the Constitution. Second, the section suggests potential constitutional bases for various types of legislation.

Resources on the Constitution That May Be Relevant for CASs

There are numerous resources that Members and staff could use to learn more about the affirmative powers afforded Congress by the Constitution and the limitations on those powers. The Constitution and its current amendments contain a little more than 7,500 words, and Congress regularly authorizes the printing and distribution of pocket versions of the Constitution for Members and staff. Moreover, a host of primary historical documents from the founding era are available electronically for those interested, including the following:

Farrand ' s Records : Documentary records from the Constitutional Convention, including the notes gathered by various attendees, complied by historian Max Farrand. The Federalist Papers : A series of newspaper articles written by Alexander Hamilton, John Jay, and James Madison urging the ratification of the Constitution. Founder ' s Constitution : A joint venture of the University of Chicago Press and the Liberty Fund, providing various primary sources for each clause of the Constitution. Constitutional Sources Project (ConSource): ConSource provides free access to a "digital library of historical sources related to the creation, ratification, and amendment of the United States Constitution."

In addition to these primary sources, Members and staff may wish to consult a number of secondary sources that are publicly available explaining the various clauses of the Constitution, including the following:

Constitution Annotated ( CONAN ) : The Library of Congress, through the Congressional Research Service, regularly publishes and updates The Constitution of the United States of America: Analysis and Interpretation (popularly known as the Constitution Annotated or CONAN). CONAN contains an in-depth, accessible, and objective record of how each provision in the Constitution has been interpreted by the Supreme Court and other entities. Commentaries on the Constitution of the United States : Commentaries on the Constitution of the United States is a three-volume treatise written by Associate Justice Joseph Story in 1833. It is widely cited as an authoritative understanding of the Constitution. Interactive Constitution : For an overview of the Constitution, the congressionally chartered National Constitution Center has created the Interactive Constitution wherein "scholars of different perspectives discuss what they agree upon, and what they disagree about" with regard to broad concepts in constitutional law. The Heritage Foundation ' s Guide to the Constitution : The Heritage Foundation's Guide to the Constitution provides a clause-by-clause analysis of the Constitution with a series of explanatory essays from a number of legal scholars. The American Constitution Society ' s Keeping Faith With the Constitution : The American Constitution Society's Keeping Faith With the Constitution examines the text and history of the Constitution with a view toward how the Constitution's "words and principles" have been interpreted throughout U.S. history.

Additional Considerations in Crafting CASs

To aid drafters of CASs, Table 2 provides a list of suggested citations that could potentially be submitted in a CAS pursuant to House Rule XII, clause 7(c), for various types of commonly introduced legislation.

Beyond these suggestions for citations to specific provisions of the Constitution, given the broader trends with regard to CAS practices discussed above, it may also be helpful to consider the following questions before submitting a CAS:

Does the CAS cite to a specific clause of the Constitution? While several recent CASs have adopted the practice of citing to an entire Article of the Constitution or a section of the Constitution, such as Article I, Section 8, the prevailing customary practice has been to cite to a specific clause of the Constitution. To the extent a Member wishes to cite to a specific clause in a CAS, Table 2 may be a helpful resource to consult. Does the CAS cite only to the Necessary and Proper Clause? While a considerable number of CASs cite exclusively to the Necessary and Proper Clause, such a citation may raise questions with regard to whether the clause is intended to do more than supplement Congress's other enumerated powers under the Constitution. To the extent a Member may wish to cite to Congress's other, more specific enumerated powers for support for a given piece of legislation, Table 2 may be a helpful resource to consult. Does the CAS cite to a clause that affirmatively empowers Congress to take an action? Citations in CASs to clauses in Article I, Section 9 of the Constitution, which contains a list of limitations on the powers of the federal government, or the Bill of Rights, which consists of a number of rights retained vis-á-vis the federal government, may suggest a broader interpretation of such clauses. To the extent a Member prefers to cite to a clause that is more generally recognized to grant an affirmative power to Congress, Article I, Section 8 contains the vast majority of commonly cited clauses that provide Congress the power to legislate with respect to various subjects. Does the CAS cite to a clause that relates to and authorizes the underlying legislation? Perhaps most importantly, a Member may wish cite to a provision of the Constitution whose power, based on either historical understandings or judicial interpretations of a particular clause, has some relationship with the subject matter of the legislation. As discussed earlier in this report, citations to constitutional provisions like the General Welfare Clause and the Military Regulation Clause may be more limited than the language of the Constitution might suggest at first blush. To the extent a Member may want to confirm that a particular CAS citation relates to and authorizes the underlying legislation, attorneys in CRS's American Law Division can provide advice with regard to specific CAS citations.

Conclusion

A House Rule XII, clause 7(c), statement regarding the constitutionality of legislation is required only when a Member of the House introduces legislation. The CAS, by its nature, is just the starting point for constitutional dialogue respecting a bill or joint resolution. Nothing in the rule prohibits further discussions about the constitutional issues that a piece of legislation may implicate. While the customary practice with regard to CASs, to date, has been to provide a short citation to the provision in the Constitution that affirmatively grants Congress the authority to enact the underlying legislation, it is not unprecedented for Members to cite sources beyond the text of the Constitution, such as Supreme Court case law, primary source materials on the Constitution, or a constitutional law treatise. Other CASs have gone beyond citing to the affirmative powers that the Constitution provides Congress and have discussed potential restraints the Constitution imposes that may prohibit the enactment of the underlying legislation.

Outside of a CAS, Members can request a formal floor debate respecting the constitutionality of pending legislation, and constitutional debate and dialogue can occur in a host of other contexts, including voting to enact legislation, committee hearings, committee reports, and more "informal practices, norms, and traditions." Also, Members of Congress have a variety of resources available to help inform their participation in constitutional debate, including "expert witnesses at hearings, their legally trained staff, [and] constitutional experts at the [CRS]." In particular, CRS's American Law Division regularly provides legal advice to Members and their staff on constitutional questions regarding pending legislation, whether by providing suggestions for a CAS or by formally rendering an opinion on the constitutionality of pending legislation. In this vein, Members and their staff have the capability to meaningfully participate in ongoing debates over the interpretation of the Constitution, beginning with the CAS.