Representative John Shadegg (R-AZ) has re-introduced in the House HR 450, the Enumerated Powers Act, which would compel lawmakers to cite specific constitutional authority for all bills. This is not the first time he has introduced this bill. See here, here, and here for other discussion on it. It has no chance of passing through the Democrat dominated Congress, or even getting out of Democrat-controlled committees, but it needs to be cheered on.
The entire Bill is as follows (It’s short; don’t panic. I wouldn’t spring the Stimulus Bill on you.):
To require Congress to specify the source of authority under the United States Constitution for the enactment of laws, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Enumerated Powers Act’.
SEC. 2. SPECIFICATION OF CONSTITUTIONAL AUTHORITY FOR ENACTMENT OF LAW.
(a) Constitutional Authority for This Act- This Act is enacted pursuant to the power granted Congress under article I, section 8, clause 18, of the United States Constitution and the power granted to each House of Congress under article I, section 5, clause 2, of the United States Constitution.
(b) Constitutional Authority Statement Required- Chapter 2 of title 1, United States Code, is amended by inserting after section 102 the following new section:
‘Sec. 102a. Constitutional authority clause
‘Each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. The failure to comply with this section shall give rise to a point of order in either House of Congress. The availability of this point of order does not affect any other available relief.’
(c) Clerical Amendment- The table of sections at the beginning of chapter 2 of title 1, United States Code, is amended by inserting after the item relating to section 102 the following new item:
‘102a. Constitutional authority clause.’.
This is a good bill. It is one third of a great bill; what it needs is legislation throwing out the Supreme Court’s 1942 Wickard v. Filburn decision and language that more closely defines “general welfare” so the General Welfare clause in the Constitution can’t be tortured so gratuitously. Wickard v. Filburn is a heartbreaker of a case and probably one of the wickedest acts of Supreme Court malpractice in the Court’s history, right up there with Dredd Scott and Roe v. Wade. See Madison’s veto of federal public works bill from 1817 for the main writer of the Constitution’s reasoning with respect to the General Welfare clause. I don’t pretend to know exactly how the Congress would go about writing a correction to Supreme Court excess that would stand muster, but you’d figure with about eleventy million lawyers swarming around Congress that between them, they’d be able to figure it out.
Even as is, the Enumerated Powers Act bill is a bill worth calling, writing, and visiting your Congress critter about. They might even manage to read it before making a decision about it. Imagine that!
UPDATE: Randy E. Barnett proposes in the pages of the WSJ a Federalism Amendment that would do much of what I propose in the expanded Enumerated Powers Act. In addition, he proposes the states start pushing for an Amendments Convention and use that leverage to force Congress to pass the Federalism Amendment instead. Also see a great article expounding on these ideas from Procrustes at RBO.
h/t: Jim Delaney