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Old 08-03-2005, 08:46 PM   #1 (permalink)
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My favorite piece of legislation - H.R. 384

H.R. 384...

Quote:
Enumerated Powers Act (Introduced in House)
HR 384 IH
108th CONGRESS
1st Session
H. R. 384
To require Congress to specify the source of authority under the United States Constitution for the enactment of laws, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
January 27, 2003
Mr. SHADEGG introduced the following bill; which was referred to the Committee on the Judiciary

A BILL
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.'.
Brilliantly simple. In short... this bill would require that each piece of legislation brought before congress cite the specific text of the Constitution authorizing Congress to act in that capacity. I think this would be a great way to ensure that each and every law passed has it's authority granted by the U.S. Constitution.

I would certainly support similar measures taken for every Executive order and every Supreme Court decision.

Cheers to John Shadegg for bringing this up.
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Old 08-03-2005, 08:47 PM   #2 (permalink)
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Now this, I would like.
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Old 08-03-2005, 09:06 PM   #3 (permalink)
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Looks good.. something that should have really been done a long time ago.

We have way too many laws on every level, and once they're in its a pain in the ass to get rid of them. There's so many laws that just arent enforced anymore and make no sense in this day and age. What we need is a group of people that goes through old laws and gerts rid of them. Right now the excuse is that its "too expensive and time consuming" to get rid of dead letter laws and laws that are just flat out unconstitutional. In the mean time we seem to have little to no problem stacking more on to the pile.
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Old 08-04-2005, 04:00 AM   #4 (permalink)
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A great idea, but not one that will make a significant difference, I'm afraid. Between the commerce clause and the elastic clause, Congress will find it easy to justify pretty much anything they want to do.
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Old 08-04-2005, 04:43 AM   #5 (permalink)
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Quote:
Originally Posted by politicophile
A great idea, but not one that will make a significant difference, I'm afraid. Between the commerce clause and the elastic clause, Congress will find it easy to justify pretty much anything they want to do.
True. But wouldn't such a bill create more transparency for the public? If certain clauses are being used to pass laws the majority of people are against, couldn't that transparency help create constitutional changes?
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Old 08-04-2005, 06:38 AM   #6 (permalink)
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That's nice, but I'd really like to see them be required to justify each line in the highway bill on MTV.

Seriously, I think that the argument of implied powers (advanced by Madison in the Federalist and used by Hamilton to create the first national bank) will allow many more things than the average person would expect.
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Old 08-04-2005, 07:29 AM   #7 (permalink)
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Quote:
Originally Posted by Jocose
True. But wouldn't such a bill create more transparency for the public? If certain clauses are being used to pass laws the majority of people are against, couldn't that transparency help create constitutional changes?
I don't think this bill would be of any use to anyone who wasn't already well-informed about how the Constitution is used to justify law-making. I don't really expect John Q. Public to suddenly say, "Hey, the justification for the 298th line of H.R. XXXX sounds like an overly broad use of the commerce clause: that justification doesn't work!" So, I don't think this bill would have any affect on the public at large in any direction.

Constitutional changes? First off, I think it is unrealistic to expect Congress to vote to cut out pieces of Article I, Section 8 because it would reduce their own power. We better get in touch with 2/3 of state legislatures! Secondly, I don't think there's anything wrong with the Constitution: the document is as close to flawless as could be reasonably expected. The problem is that the government is taking significant liberties with the written word of the constitution. Someone needs to kill the Constitution again because I want it dead!
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Old 08-04-2005, 11:01 AM   #8 (permalink)
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I see no judicial relief in this bill.

So, if they where to say every law is justified by

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

there is no consequence (that is the preamble to the constitution). Because the law does not state that the law becomes invalid if the justification is invalid.

Hell, you could claim your law was justified by the word "the", which is the 2nd word in the preamble, and it would still be a valid law.

All it requires of congress is some meaningless, consequenceless, justification phrase.
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Old 08-04-2005, 11:06 AM   #9 (permalink)
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This bill really appears to be just window dressing. It doesn't really do anything. So lawmakers have to slap a quote from the Constitution at the top of their bill like some kind of legal disclaimer. I don't see it answering any of the potential reasons for its being.

If the goal is to force lawmakers to justify their codification, it doesn't serve the role. They can just pick the passage of choice and slap it on to cover the technical rule. So its just added text with no benefit.

If the goal is to provide a shield for laws from constitutional challenges, it won't work either. The Supreme Court doesn't care what the House puts on the bill as the supposed justification, they are still going to review a law with the same process they always have. It is the Judicial Branch's obligation to judge constitionality, not the Legislative.

So what purpose does this serve besides making it look like they are trying to be more considerate of the Constitution? In fact I see it as dangerous in the opposite way because it can make a bill seem more Constitutionally justified than it really is.

Josh
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Old 08-04-2005, 05:09 PM   #10 (permalink)
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There isn't any reason that any branch of government would limit or corral their authority. One of thousands of BS bills
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Old 08-04-2005, 05:22 PM   #11 (permalink)
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I wish it were that easy. The problems with poltics are similar to the problems that stem from organizaed religion (and almost everything). We get a great system handed to us on a silver platter, and we destroy it in trying to use it selfishly. While this looks great at first glance, it really won't change anything because one person wants to see it their way, and another person wants to interprit the same thing in a totally different way. Who's right? Probably neither. We say we try to do it for the common good, but when presented with an opportunity, we invade Iraq. Heh.
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Old 08-04-2005, 05:35 PM   #12 (permalink)
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I would actually much rather see each bill that is passed also include an accounting of fiscal responsibility. That is, if you pass a bill you have to also account for how we are going to pay for it. Making this enforceable would be a challenge, but I think it is worthy of investigating.
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Old 08-04-2005, 06:18 PM   #13 (permalink)
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Quote:
Originally Posted by joshbaumgartner
I would actually much rather see each bill that is passed also include an accounting of fiscal responsibility. That is, if you pass a bill you have to also account for how we are going to pay for it. Making this enforceable would be a challenge, but I think it is worthy of investigating.
I think California already has that. "Unfunded mandates" is the terminology, which might even be in place for the federal government.

I haven't noticed an improvement in the deficit spending of the US gov't or California's, though.
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Old 08-04-2005, 07:34 PM   #14 (permalink)
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i think some of you are missing the point...

the goal of the bill isn't to enforce a strict constructivist view of the Constitution on each piece of legislation (though that would be nice)... but merely to ensure that each discussion and each reading of new law begins with its links to Constitutional roots. Having that sort of perspective as a matter of convention would, i believe, fortify the Constitution's presence in lawmaking (a good thing).
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Old 08-04-2005, 08:40 PM   #15 (permalink)
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We already have this. It's called the supreme court.

Oddly enough I think this bill would require a Constitutional amendment.
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Old 08-05-2005, 09:59 AM   #16 (permalink)
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Quote:
Originally Posted by Marvelous Marv
I think California already has that. "Unfunded mandates" is the terminology, which might even be in place for the federal government.

I haven't noticed an improvement in the deficit spending of the US gov't or California's, though.
Yes, it is there in CA, but there is no equivalent at the Federal level. CA is a bit limited in how well it can maintain as it can't control unfunded mandates from the Federal Gov't that are passed down.

I wouldn't want the Federal Gov't to operate under a balanced budget initiative that puts hard limits on spending, like there is in some states like Oregon, because the Feds have responsibility for things above and beyond the states, like national defense and security that should not be limited artificially, but instead should be funded by Congress to whatever level is deemed necessary and appropriate for the situation at hand, regardless of our immediate finances.

But what I do want is some accounting for a plan to pay for any outlays. That can be a plan to borrow money or to raise taxes or to cut spending elsewhere, but it has to be accounted for and have the force of law to ensure we can do it.

Josh
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Old 08-16-2005, 07:45 PM   #17 (permalink)
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Quote:
Originally Posted by Locobot
We already have this. It's called the supreme court.

Oddly enough I think this bill would require a Constitutional amendment.
I'm not to ready to agree. It's merely a rules change. I don't think it would be required for insertion into the U.S. Code, I think it would just have to be in the bill text.

I think it's a great idea, and it would certainly help silly legislation.

Here's the big dilemma, though: suppose a bill was found to not be authorized under a particular clause in the Constitution. Would the court be able to support it under a different clause, or would it be nullified and have to be re-introduced? I think this is the big problem.
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Old 08-16-2005, 09:09 PM   #18 (permalink)
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Seems to me like this may be an attempt to do an end around on the Supreme Court, or to serve as the basis for a conservative Court's ruling that a given piece of legislation under challenge passes Constitutional muster. Call me unduly suspicious, but there really isn't any obvious reason for it otherwise, since all federal law is supposed to pass Constitutional scrutiny anyway. I hope I'm wrong. Does anyone know the legislative history of this bill?
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Old 08-17-2005, 05:36 AM   #19 (permalink)
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Or another way of looking at it: the "authorization" is just someone's opinion; if the SCOTUS disagrees with it, then it's meaningless.
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Old 08-17-2005, 02:17 PM   #20 (permalink)
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Raven, you are correct. If the SC does its job, then it can not default to self-justification included within the law. The SC analysis of a case must be fully independent of the cited quote from the Constitution.

As I read it, all this HR does is allow a 'point of order' to be called in the case that a piece of law does not conform to it. If anyone here is a parliamentarian, they may be able to shed more light on what actually this entails, but from my limited knowledge it seems that a PoO is up to the speaker to either accept or turn down. I don't know if maybe there is a possibility of a vote to override this discretion?
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Old 08-18-2005, 08:40 PM   #21 (permalink)
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This is just political maneuvering. Most bills already have some brief preamble in which some part of the constitution is cited. The no-guns-around-schools law that the SC rejected in Lopez, shocking alot of people at the time, mentioned the commerce clause in the bill itself. This minor change, if that, is a Congressman trying to look good. The legislative branch makes the laws. The Courts will still interpret the laws.
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