Tag: Constitution

Whither Constitutional Authority Statements?

On its first day of business this past January, the Republican House majority adopted a new rule requiring every bill to include a so-called constitutional authority statement, listing the part(s) of the Constitution that give Congress the power to do what the bill says. 

At the time, I analyzed the requirement, as did Cato’s chairman emeritus Bill Niskanen, and what effect it might have on congressional action.  We noted that, while it was a good thing for people (and especially elected officials) to be paying attention to the Constitution, the practical effect may be negligible because legislators would overwhelmingly cite the General Welfare Clause, Commerce Clause, and Necessary and Proper Clause – all part of Article I, section 8.  To minimize this result, Cato ran an ad in Politico and other publications explaining what these clauses could and could not justify.  Here are the points we made:

  • Contrary to modern readings, the General Welfare Clause does not grant Congress an independent power to tax and spend for the “general welfare.” If it did, there would be no need to enumerate any other powers.  Rather, it authorizes Congress to enact the specified taxes for the specified purposes—headings more precisely defined by the 17 enumerated powers or ends that follow. And Congress’s power to tax for the “general welfare” precludes it from taxing to provide for special parties or interests.
  • The Commerce Clause too does not authorize Congress to regulate anything and everything, which again would put an end to the idea of a government of enumerated and thus limited powers.  Under the Articles of Confederation, states had erected tariffs and other protectionist measures that were impeding interstate commerce. To end that and ensure free interstate commerce, Congress was given the power to regulate, or “make regular,” such commerce—the main sense of “regulate” at the time. Were Congress thought to have the all but unbounded regulatory power it exercises today, the Constitution would never have been ratified.
  • The Necessary and Proper grants Congress the means to execute its enumerated powers or ends and those of the other branches. It adds no new ends. And the means must be “necessary and proper.”  That means they must respect the Constitution’s structure and spirit of limited government; they must respect federalism principles; and they must respect the rights retained by the people.

So, nine months later, what happened?  The Republican Study Committee – essentially the GOP House Caucus’s conservative sub-caucus – has come up with the following analysis (analyzing 3042 bills through September 16, some of them counted more than once in the below statistics):

  • 3 bills cite only the Preamble to the Constitution.
  • 84 bills cite only Article 1, which creates the Legislative Branch.
  • 58 bills cite only Article 1, Section 1, which grants all legislative powers to Congress.
  • 470 bills cite only Article 1, Section 8, which is the list of specific powers of Congress, without citing any specific clause.
  • 539 bills cite [the General Welfare Clause].
  • 567 bills cite [the Commerce Clause].
  • 247 bills cite [the Necessary and Proper Clause], without citing a “foregoing power” as required by [Article I, section 8,] clause 18.
  • 309 bills cite two or more of the “general welfare” clause, commerce clause, or the “necessary and proper” clause.
  • 87 bills cite Article 1, Section 9, Clause 7, which provides that no money shall be drawn from the Treasury, but in consequence of appropriations made by law.
  • 210 bills cite Article 4, Section 3, which provides that Congress shall have the power to make rules and regulations respecting the territory or property of the United States.
  • 252 bills cite an amendment to the Constitution.  For example, 54 cite the 10th Amendment (powers not delegated to the federal government), 30 cite the 14th Amendment (“equal protection, etc.”), and 64 cite the 16th Amendment (income tax).

Pretty thin gruel and, as I noted above, not unexpected.  Then again, if the constitutional authority statement requirement has caused even one House member to waver over what he has the power to propose – let alone to refrain from offering a bill – this minor legislative rule will have been an improvement on the status quo ante.

Requiring Consensus in Congress

Yesterday Cato hosted a book forum on Joe Gibson’s new book, A Better Congress: Change the Rules, Change the Results. The author had a lot of thoughtful ideas, and the event is worth watching (its also a short book, easy read). Several of the book’s proposals move toward getting greater consensus in Congress and more agreement across the parties. Which got me thinking, if you want consensus, why don’t you start by just requiring it. Something like a 300 vote requirement in the House with a 80 vote requirement in the Senate. There’s nothing in our Constitution that requires simple majorities (or 60 for that matter), at least for routine business (yes there are rare exceptions). This would not stop every bad law, far from it, but it would require laws to have more support, with the result that would have more legitimacy in the eyes of the public.

Now the biggest problem with this proposal would be that it favors the status quo, as changing the status quo would become far more difficult. The solution is to require every federal program and authority to have a sunset date, something like 5 or at most 7 years. If you can’t get broad consensus to keep a program, then it sunsets and goes away. If the program is much loved, then it should have no problem staying. Worth keeping in mind that the vast majority of bills pass the Senate by unanimous consent, almost in effect requiring 100 votes. So I don’t see either of these changes being that disruptive to the Senate and would likely improve the process in the House.

The First in a Long Series

The Washington Post offers today a critical look at independent fundraising and spending in the 2012 campaign.

The article states independent groups are raising money “in response to court decisions that have tossed out many of the old rules governing federal elections, including a century-old ban on political spending by corporations.”

But the century-old ban is on campaign contributions by corporations, and it is intact. Spending on elections was not prohibited to some corporations until much later.

Other spending by corporations, like the money spent by The Washington Post Company to produce the linked story, has never been regulated or prohibited by the federal government.

The article mentions a “shadow campaign” and refers to Watergate. It states “independent groups are poised to spend more money than ever to sway federal elections.” Surely something is amiss here! Or at least the causal reader of the Post might conclude that.

But what is going on? A spokesman for one of the independent groups says they are trying to influence the debt ceiling debate and that as far 2012 goes: “We’re definitely working to shape how the president is perceived, because how he is perceived will have a huge impact on how this issue is resolved.”

It sounds like the group is engaging in political speech on an issue, speech that could have some effect on next year’s election. What is amiss about that? Isn’t the right to engage in such speech a core political right under our Constitution?

The article also argues that independent groups, being independent, may fund speech that may harm a candidate they are trying to help. Candidates, in a sense, have lost some control over their campaigns and their messages.

Of course, absent limits on contributions to candidates and parties, the money going to independent groups might go to…candidates and parties. Liberalizing speech, not suppressing independent groups, might be a good way to prevent groups from airing ads that harm or misrepresent candidates for office. Finally, candidates do have the power to repudiate independent ads.

Expect more news stories like this one over the next 18 months. The cause of campaign finance reform is in desperate straits. Reformers in the media are going to construct a narrative that says: money is destroying democracy in 2012, all because of Citizens United. They hope thereby to set the stage to restore restrictions on campaign finance.

Why Is Virginia Gov. Robert McDonnell Implementing ObamaCare?

I ask this question in today’s Richmond Times-Dispatch:

Virginia Republican Gov. Bob McDonnell…says Obamacare is unconstitutional and therefore illegitimate. Yet he has created a state commission to study whether Virginia should implement an illegitimate law. Since the answer does not appear self-evident to commonwealth officials, let’s walk through the reasons Richmond should refuse to create any new health-care bureaucracies.

Didn’t this guy take an oath to support the U.S. Constitution?

Thursday Links

Wednesday Links

“If He Approve, He Shall Sign It…”

The Patriot Act extension passed by Congress this week did not become the law of the land. It is void and without effect.

So may argue some future defendant whose conviction rests on evidence gotten under Patriot Act powers during the extended period Congress sought to establish in the bill it passed this week.

President Obama is at a meeting in Europe, so he had the bill signed by auto-pen. Representative Tom Graves (R-GA) has written a letter inquiring of the president whether he was presented the bill and truly intended to sign it.

Article I, Section 7 of the Constitution says:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it…

Is presentment and signing a quaint formality? Something to put aside in light of modern technology and time-constraints? Or is it an important step in the law-making process, to be executed quite literally without deviation from past practice?

The answer lies mostly in consideration of what a signature is, and what it does. I looked into signatures, among many other identifiers and security techniques in my book, Identity Crisis.

Wikipedia has a definition of “signature” that’s good enough: “A signature is a handwritten (and sometimes stylized) depiction of someone’s name, nickname, or even a simple ‘X’ that a person writes on documents as a proof of identity and intent.” Key words: identity and intent.

In the world of identification and security, a signature is classed as a “behavioral biometric identifier.” That is, it’s a product of a given person’s bodily action that is distinctive enough to create strong evidence of the person’s presence.

A signature does many things, and inferences spill out from the presence of a mark on paper that is sufficiently similar to other marks made by a particular person. Because it’s left on the paper, a signature indicates that the person was in the presence of the document. This means in most cases that he or she could review it and had the opportunity, barring some exigency, to affirm its accuracy and completeness. By long-standing custom, absent duress or fraud, the signature indicates the giving of one’s assent or the placing of authority behind the content of the document. A signature supplies evidence—imperfect, to be sure—that a given person approved a given document.

Does a signature by auto-pen create the same inferences? Almost none of them. To know that President Obama indeed meant to affirm the bill, one would have to investigate how he was apprised of the bill’s content. Were there security measures in place to ensure that the communication about the document and the giving of assent were not altered or forged in transit from Washington, D.C. to Europe? One would need assurance that the controller of the auto-pen applied its mark to the exact document that the president was apprised of, and that no substitute document was inserted. All these problems are solved by bringing the person with authority into the same room with the document to manually apply the signature.

I haven’t a whiff of doubt that President Obama intended to sign the bill. The authority of the president and the gravity of bill-signing are such that I’m confident security measures were in place to control the security issues noted above.

But the question in a court case dealing with the presentment and signing requirement is not what happened with this particular bill. It is what should happen in all cases to help exclude the risks of fraud and duress in law-making—with much longer bills, for example, or some future circumstance when the president’s whereabouts or capacity might be unknown.

The authority of the president and the gravity of bill-signing actually cuts the other direction: The president should be in the same room as the actual document, applying his genuine signature to the artifact of a United States public law’s creation. It’s that important a function of the presidency.

Until biometrics and encryption are good enough that we can sign our mortgages remotely, it’s not too much to ask, having the president to sign legislation in person. If a criminal or two go free in the future because of the inadequacy of the process here, it will be worth it for the small security against fraudulent passage of legislation in a future full of uncertainties.