Tuesday, March 27, 2012

Constitutional Authority Statements

This week the Supreme Court's health care arguments draw the nation's attention. What did Congress think about the constitutional authority underlying this law? Answering this question would require delving into the legislative history, a resource whose value is disputed. Committee reports are often seen as one of the more reliable legislative history resources, but the Patient Protection and Affordable Care Act apparently generated no committee reports. Had one existed, there is no guarantee that we could find a statement explaining which clause supported this law.

A change of rules in the House of Representatives last year seems to provide researchers a clearer picture of constitutional authority. House Resolution 112-5 requires the sponsor of every bill to identify "as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution." The Resolution also requires constitutional authority statements to be printed in the Congressional Record. Here's an example from the Fallen Heroes of 9/11 Act.

Yet, constitutional authority statements tell us only what the sponsors of legislation believed about constitutional powers at the beginning of the legislative process, before any debate has take place. In part for these reasons, Hanah Volokh argues that these statements could be modified to make them more useful for Congress as well as for the courts.

Hat tip: beSpacific