When the Republicans regained control of the House in 2010 there was a lot of concern that the Nation had strayed from the Constitution. Perhaps because of that concern the House Leadership required that all bills introduced include a constitutional authority statement identifying what part of the Constitution authorizes the bill. The purpose was explained as demonstrating that Congress understands its constitutional obligations
Citing a bill as unconstitutional had become an easy way to cast doubt rather than actually discussing the bill itself as we saw with opposition to the Affordable Care Act which, despite Members stating it was certainly unconstitutional, it is.
So those who swear to uphold the Constitution weren’t all that accurate in their interpretation and that is a bit understandable because the Constitution is so entrenched in our culture it may be safe to say that we have an instinctual understanding of it and if we question the Constitutionality of something we generally believe we’re right; that the clause supporting our argument is in there someplace.
Congress should not, however, have the luxury of deciding constitutionality on instinct because the Constitution is the basis of all their work; their guide, and accuracy is important. It should be easy for a Member to locate the authority and attach it to the bill. One would think. But why do Members of both parties continue to get it wrong or even add authorizing text that isn’t in the Constitution?
Rep Ann Kirkpatrick (D-AZ), for example, introduced a bill rectifying an erroneous survey decades back by selling private citizens parcels of federal land they have improved over the years thinking it was theirs. Kirkpatrick cited Article 1 along with this addition; “Section 7, Congress has the authority to pass bills for the good of the nation.” Section 7 deals with establishing that all bills raising revenue originate in the House and then discusses the President’s veto authority and how Congress can respond. No words about ‘the good of the Nation or selling public land.’
Recently Rep Jason Chaffetz (R-UT) introduced a bill that directs the Secretary of the Interior to convey certain Federal features of an electric distribution system to the South Utah Valley Electric Service District.” Rep. Chaffetz cites the Tenth Amendment as the authority for the land and facility deal, but the tenth amendment addresses State’s sovereignty, not transferring or disposing of public property. Chaffetz introduced another bill conveying 80 acres of federal land to Brigham Young University at a fair market value. Chaffetz states his constitutional authority as Article I, Section 8, Clause 2 which gives Congress the authority to ‘borrow money on the credit of the United States’ not to dispose of public land.
Also in Utah a bill by Rep Rob Bishop (R-UT) gives to the City of Fruit Heights, Utah 100 acres the US purchased about ten years ago for $3 million. Bishop may have gotten his constitutional authority right by citing Article IV, section 3, clause 2 giving Congress the power to “…dispose of…property belonging to the United States;”.
To its credit, the Republican Study Group looked at this matter after one year and concluded among other things that of the bills passed by the House in 2012, 72% of constitutional authority statements, “did not explain why their particular legislation was justified by the U.S. Constitution.” The RSG also noted that “5 (bills) cite clauses which either do not exist or are incorrectly numbered.”
This behavior could be born of arrogance, ignorance, or error but it does not, as the add-on rule suggests, demonstrate “…to the American people that we in Congress understand that we have an obligation under our founding document to stay within the role established therein for the legislative branch.” ##
Senators Wrestle to Settle Nomination
from the Senate Historical Office
July 9, 1964
Soon after he signed the Civil Rights Act of 1964, President Lyndon Johnson sent the Senate a particularly significant nomination. Sensitive to southern concerns about the scope and implementation of that landmark statute, Johnson considered carefully whom he would name to the newly established Community Relations Service, designed to mediate local racial disputes. He selected a white southerner, former Florida Governor LeRoy Collins.
The Senate referred the Collins nomination to its Commerce Committee, whose most senior southern member was South Carolina Senator Strom Thurmond. Collins had angered Thurmond with a speech in the senator’s home state in which he charged that southern leaders’ “harsh and intemperate” language unnecessarily provoked racial unrest. Thurmond, an opponent of the Civil Rights Act when it was before the Senate, pointed out that Collins had openly supported segregation in the 1950s. Collins responded, “We all adjust to new circumstances.”
Commerce Committee Chairman Warren Magnuson knew he had the votes to favorably report the Collins nomination to the full Senate. For two days, however, he had tried unsuccessfully to obtain a quorum so that the committee could act. Knowing of the chairman’s difficulty, Thurmond stationed himself outside the committee’s room in the Dirksen Senate Office Building on July 9, 1964, hoping to block action by turning away late-arriving senators.
At that moment, Texas Senator Ralph Yarborough appeared. Yarborough had been the only southern senator to vote for the Civil Rights Act. The Texan laughingly said, “Come on in, Strom, and help us get a quorum.” In a similarly light-hearted manner, Thurmond responded, “If I can keep you out, you won’t go in, and if you can drag me in, I’ll stay there.” Both men were 61 years old, but Thurmond was 30 pounds lighter and in better physical condition.
After a few moments of light scuffling, each senator removed his suit jacket. Thurmond then wrestled the increasingly out-of-breath Yarborough to the floor. “Tell me to release you, Ralph, and I will,” said Thurmond. Yarborough refused. Another senator approached and suggested that both men stop before one of them suffered a heart attack. Finally, Chairman Magnuson appeared and growled, “Come on, you fellows, let’s break this up.”
Recognizing a great exit line, Yarborough grunted, “I have to yield to the order of my chairman.” The combatants did their best to compose themselves and entered the committee room.
Although Thurmond had won the match, he lost that day’s vote: 16 to 1.