Constitutional Authority Statements and Repeal Legislation

To introduce a bill or joint resolution, House Rule XII requires Members of the House to attach a statement identifying the source of Congress's constitutional authority to enact such legislation, known as a Constitutional Authority Statement (CAS). The underlying source of constitutional authority may be clear when Congress is creating new law, but that authority is less certain when Congress seeks to repeal a law, especially a law that Congress determines it lacked the constitutional power to enact in the first place. This In Focus begins with an overview of the effect, enforceability, and implementation of the CAS requirement. It then turns to the sources of authority Members might cite for repealing federal laws, particularly when the Member views that law as unconstitutional.

CAS Overview

Legal Effect, Enforcement, and Rationale

A CAS does not have direct legal effect. It accompanies a bill or joint resolution, but it is not included in the text of the bill or joint resolution itself. Nor does a CAS proceed through the bicameralism or presentment processes necessary for legislation to become law. As a result, a CAS may be reviewed by a court as evidence of congressional intent, but it is not binding.

As a House rule, the CAS rule is enforced internally by the House. The section-by-section analysis of the rule states that "the Clerk must ensure that a statement required under this paragraph accompanies the measure," but "is not required to evaluate the content of the statement or its adequacy," as "those are matters to be considered by Members during consideration of the legislation."

In 2011, when the current iteration of the CAS rule was established, the House Committee on Rules explained that "a statement outlining the power under the Constitution that Congress has to enact a proposed bill will inform and provide the basis for debate." The committee added that the requirement also serves a civic function by "demonstrat[ing] to the American people that . . . Congress understand[s] [its] obligation under our founding document to stay within the role established therein[.]"

House Implementation of the CAS Requirement

House Rule XII directs Members of the House to identify the constitutional basis for the legislation with as much specificity as is "practicable." CRS research indicates that, consistent with the discretion accorded by the rule, Members have invoked a wide range of sources with varying degrees of specificity. A CRS review of 2,047 bills and joint resolutions from the 114th and 115th Congresses revealed that most CASs (654) made only a general reference to Article I, Section 8, of the Constitution, which lists almost all of Congress's enumerated powers to legislate. The next most cited source (500 times) was the Necessary and Proper Clause, which has been interpreted as an extension of other enumerated congressional powers.

CAS in the Context of Repeals

The Constitution does not expressly address the authority of Congress to repeal a federal statutory provision. The Supreme Court has long recognized, however, Congress's authority to repeal a federal statute. A statute repealing existing law need only follow the same constitutional procedures as a statute that creates new law: in I.N.S. v. Chadha, for instance, the Court wrote that the "repeal of statutes, no less than enactment, must conform with Art[icle] I." The reasons Congress may enact legislation may be varied, as may be the reasons Members may want to repeal a law, including the belief (as illustrated here and here) that the law to be repealed is unconstitutional.

Members may have several options to comply with the CAS rule when a statute's unconstitutionality is the basis for the repeal legislation. First, Members may cite the same authority that Congress relied upon to pass the statute to be repealed. But a court holding that Congress did not have authority to enact that statute may impact Congress's ability to use that same authority to repeal the offending law. Second, Members could reference the constitutional power that they believe Congress exceeded when enacting the legislation to be repealed. If, for instance, Congress is persuaded that an act of Congress is beyond the scope of the Commerce Clause, it could invoke that clause in the CAS. Or, if Congress believed that a statute impeded on powers reserved for the states under the Tenth Amendment, a CAS could invoke that amendment.

Third, Congress could cite the Necessary and Proper Clause. As then-Professor Amy Coney Barrett wrote in a coauthored law review article, Members of Congress take an oath to support the Constitution that "is widely understood" to include a duty to "observe the constitutional limits upon congressional action." These limits are reflected in the Vesting Clause of Article I, which restricts "all legislative powers" to those enumerated in the Constitution. Alexander Hamilton reasoned that "[t]his specification of particulars evidently excludes all pretention to a general legislative authority[.]" Members may contend that the Necessary and Proper Clause is appropriate to use in this context because the power to repeal unconstitutional statutes is ancillary to the authority to pass laws and incidental to Congress's constitutional duty to adhere to its structural limits.

Fourth, Members could invoke Article I, Section 8. This general reference to the enumerated powers of Congress may indicate a Member's recognition that the powers of Congress are largely confined to those listed in this Section. (Other congressional powers exist in Article IV and the Reconstruction Amendments.)

In a review of the bills and joint resolutions originating in the House in the 118th Congress, at least 18 bills explicitly sought to repeal an existing federal statute (see Table 1). Among these 18 bills, Members cited Article I, Section 8, as the sole source of constitutional authority 14 times. The Necessary and Proper Clause (Article I, Section 8, Clause 18) was the next most cited provision (3). One bill cited the Commerce Clause. These repeal bills include legislation introduced to repeal purportedly unconstitutional statutes. For example, one bill sought to repeal the Impoundment Control Act of 1974 on the Member's view that the statute was unconstitutional at the outset because it infringes upon the powers of the President. The CAS accompanying that bill referenced the Necessary and Proper Clause.

Considerations for Congress

Given the lack of legal consequence and external enforceability, some have raised doubts about the value of the CAS rule. Some suggest that general citations (e.g., referencing all of Article I, Section 8, or a clause) may not provide insight into the constitutionality of legislation. In a law review article, former Senator Russ Feingold proposed a Senate counterpart to the House CAS rule that would, among other things, obligate a Member introducing legislation to provide a constitutional analysis of the legislation—not just a statement. A scholar has argued that the CAS rule should apply at multiple stages of the legislative process to ensure constitutional authority is considered as legislation evolves. Congress may consider these and other ideas should the House want to amend the CAS rule or the Senate seek to add a similar requirement for Senators. Congress also could continue to adopt the rule in its current form.