Top Five Constitutional Citations of the 112th Congress

When Members of the 112th Congress took the oath of office just over a month ago, the leaders of the House brought new meaning to their duty to “support and defend the Constitution.” As promised in their “Pledge to America,” they passed a rule requiring members to cite the specific constitutional authority in each bill they propose. In passing the Constitutional Authority rule, they intended to reign in unconstitutional legislation and to spark debate about what is constitutional—and indeed the reform has begun, bringing out both the best and worst of the legislative process. Heritage has done the grunt work by actually tracking which parts of the Constitution Congress has cited for the first 450 bills introduced in the House. So what clauses have made it to the top of the charts?

5. The Rules and Regulation Clause: Sliding into fifth place is Article 1, Section 8, Clause 14 with 34 citations. As Joseph Story explains, the Founders added this provision to establish a justice system for the military outside of civil court. Now we have discovered that Congress has cited it for purposes reaching beyond military justice. Some interesting examples include citations that provide benefits for merchant marines, amend the Clean Air Act, and give game law enforcement officers in the Department of Defense the authority to execute warrants, make arrests, and carry firearms.

4. The Naturalization Clause: Article 1, Section 8, Clause 4, scrapes ahead of fifth place with 35 citations. This clause grants Congress the power to provide immigrants with a path to citizenship. In the current immigration mess, the question now becomes how do work visas and green cards fit within the scope of the Constitution. While this larger question remains unresolved, these citations have at least related to immigration reform. These citations may still lie on constitutionally shaky grounds, but most of these bills are not so far removed from the clause to sound the alarm, yet…

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3. The Necessary and Proper Clause: Article 1, Section 8, Clause 18 flies into third, boasting more citations then the previous two combined (82). The Framers included this clause to clarify that Congress had the necessary and proper means to carry out the specific powers outlined in the previous 17 clauses of Article 1, Section 8. Now it is often used as a magic carpet bag—it contains every bill lawmakers need it to. One of our favorite obscurities includes a newly proposed bill for public housing vouchers, somehow drawing the conclusion that one of Congress’s enumerated powers includes providing a “decent home” to all citizens.

2. The Commerce Clause: Article 1, Section 8, Clause 3 sweeps into second with 104 citations. The power “to regulate commerce with foreign nations and among the several states”, in its original meaning, functioned primarily as a constraint upon state interference in interstate commerce. Since the 20th century, lawmakers have stretched the meaning of commerce so far that it has become a distorted caricature of the original text. Some of our favorite uses have attached this clause to bills amending the definition of a homeless person, removing the polar bear from the endangered species lists, and reauthorizing the Elephant Preservation Act. It is difficult to imagine the Founders funding elephants in Africa as part of interstate commerce.

1. The Spending Clause: Not surprisingly, this clause tops the charts at 134 citations. Article 1, Section 8, Clause 1 gives Congress the power to collect taxes for the “common defense” and “general welfare” of the people. Since the Founding, legislators have argued about the limitation of their power to tax, yet even the Founders who defined the “general welfare” most broadly agreed that it must benefit the national welfare—not a local interest, and surely not an international one. Yet some representatives have argued that the Spending Clause ought to ensure “that developing countries have affordable and equitable access to safe water and sanitation.” Lawmakers have tagged issues like global poverty as a constitutional responsibility of the American taxpayer.

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It is perhaps no surprise that the “spending,” “commerce,” and “necessary and proper” clauses have received the spotlight. Since the Progressive movement arose in the early 20th century, liberals have labeled these clauses as “one-phrase-fits-all” powers, manipulating the text in a way that actually sidesteps the original meaning of limited government. That said, citizens cannot assume that every time a member cites these phrases he is attempting to undermine constitutional government. For these clauses are indeed in the Constitution, and they outline legitimate congressional powers.

But when bills come before the floor that attempt to enact legislation like sanitation for other countries, housing vouchers, and a new status for the polar bear, Members of Congress have a responsibility to remind their fellow representatives of the limited scope of their power. The scope of Congress’s power has been debated since the Framers signed the Constitution in 1787, and while some bills lie in constitutional “gray areas,” others clearly remain outside its bounds. With the House leadership’s new rule in place, these next months provide an opportune moment for lawmakers and citizens alike to spark a healthy debate about the meaning of each clause and the bills that fall within constitutional bounds.

Brittany Baldwin is currently a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm

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