Constitutional Authority Statements and the Powers of Congress: An Overview

Constitutional Authority Statements and the
March 8, 2023
Powers of Congress: An Overview
Whitney K. Novak
On January 5, 2011, the House of Representatives adopted an amendment to House Rule XII to
Legislative Attorney
require that a Member state the constitutional basis for Congress’s power to enact the proposed

legislation when introducing a bill or joint resolution. (The amendment does not pertain to
concurrent or simple resolutions.) This Constitutional Authority Statement (CAS) rule, found at

House Rule XII, clause 7(c), has been incorporated in the standing rules of each subsequent
Congress.
A CAS is fundamentally a congressional interpretation of the Constitution in that House Rule XII requires each Member
introducing a piece of legislation to attach a statement that cites the power(s) enabling Congress to enact the legislation.
Article I’s Vesting Clause provides Congress only specified or “enumerated” powers, and every law Congress enacts must be
based on one or more of its powers enumerated in the Constitution. While the Supreme Court’s 1803 decision in Marbury v.
Madison
firmly cemented the judicial branch’s role in interpreting the Constitution—and the theory of judicial supremacy in
constitutional interpretation is now widely accepted—a number of legal scholars and government officials have promoted the
view that the political branches of government possess the independent and coordinate authority to interpret the Constitution.
In support of this view, some point to (1) the Constitution itself requiring all Members of Congress to be bound by an oath to
support the Constitution; (2) the presumption of constitutionality that courts afford legislation enacted by Congress; and (3)
the wide range of questions the Constitution requires Congress to resolve.
Under House Rule XII, the submitted CAS appears in the Congressional Record and is published on Congress.gov. The
House Rules Committee has indicated that Members have significant discretion in determining whether particular CASs
comply with the rule. The CAS rule is enforced only insofar as “the House clerk ... acts to verify that each bill has a
justification” and “not [in judging] the adequacy of the justification itself.” The most common means of complying with the
rule is to cite to a specific clause in Article I, Section 8, such as the Taxing and Spending Clause. The CAS rule has itself
been subject to much debate, with proponents arguing that the rule promotes constitutional dialogue in the House, while
critics contend that the rule provides minimal benefits and is administratively costly.

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Contents
Scope of Congress’s Powers Under the Constitution ...................................................................... 1
Congress’s Powers .................................................................................................................... 2
The Necessary and Proper Clause ....................................................................................... 3
Limits on Congress’s Powers .................................................................................................... 4
Role of Congress in Interpreting the Constitution ........................................................................... 7
House Rule XII, Clause 7(c), and Constitutional Authority Statements ......................................... 9
Compliance with the CAS Rule .............................................................................................. 10
Studies of CAS Practices ......................................................................................................... 11
Practices with Regard to Specificity of CASs ................................................................... 11
Practices with Regard to Particular Clauses Cited in CASs ............................................. 13
Legal Implications of a CAS ................................................................................................... 16
Debate over the Rule ............................................................................................................... 17
CAS Rule Reform Proposals ............................................................................................ 19
Potential Considerations for Drafting CASs ................................................................................. 21
Conclusion ..................................................................................................................................... 26

Tables
Table 1. Most Frequently Cited Constitutional Sources in CASs in Legislation Introduced
During the 114th and 115th Congresses ..................................................................................... 12
Table 2. Suggested CAS Citations for Commonly Introduced Legislation ................................... 22

Contacts
Author Information ........................................................................................................................ 27


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n January 5, 2011, the House of Representatives adopted an amendment to House Rule
XII to require that a Member of the House state the constitutional basis for Congress’s
O power to enact the proposed legislation when introducing a bill or joint resolution.1 (The
amendment does not pertain to concurrent or simple resolutions.)2 The Constitutional Authority
Statement (CAS) rule, found at House Rule XII, clause 7(c),3 has been incorporated in the
standing rules of each subsequent Congress.4 The CAS requirement continues to be a topic of
congressional debate and inquiry, as Members of the House contemplate how to comply with the
rule prior to every submission of a bill or joint resolution.5
This report aims to aid in understanding the CAS requirement. It begins by providing a broad
overview of (1) Congress’s powers under the Constitution and (2) Congress’s role in interpreting
the Constitution. The report then specifically addresses House Rule XII, clause 7(c), discussing
its key requirements and limits, the legal effect of a CAS, and the debate over the rule’s value.
The report concludes by discussing historical trends with regard to the House’s recent CAS
practices and by providing considerations for congressional personnel drafting such statements.
The report contains two tables: Table 1 provides a snapshot of the constitutional provisions most
commonly cited during a sample period in the 114th and 115th Congresses, and Table 2 lists
suggested constitutional authorities for various types of legislation.
Scope of Congress’s Powers Under the Constitution
Understanding the purpose and logic of the CAS rule first requires an understanding of both the
powers provided to the Congress under the Constitution and Congress’s role in interpreting the
Constitution. The Framers of the Constitution feared tyranny as the result of the “accumulation of
all powers” of government “in the same hands”6 and, thus, “sought to guard against it by
dispersing federal power to three interdependent branches of Government.”7 Reflecting this fear,
the federal Constitution divides the government’s power among the legislative, executive, and
judicial branches, with Congress exercising the legislative power, the President exercising the
executive power, and the federal courts exercising the judicial power.8 “It is a breach of the
National fundamental law” if Congress “gives up its legislative power” to one of the other
branches or if Congress “attempts to invest itself or its members with either executive power or
judicial power.”9

1 See H.R. Res. 5, 112th Cong. (2011) (adopting the rules for the 112th Congress, which included the Constitutional
Authority Statement (CAS) requirement).
2 Id.
3 See RULES OF THE HOUSE OF REPRESENTATIVES XII cl. 7(c)(1), 118th Congress (2023) [hereinafter HOUSE RULE].
4 See H.R. Res. 5, 113th Cong. (2013) (adopting the rules for the 113th Congress, which were based on the “constituted
rules of the House at the end of the” 112th Congress and did not alter the CAS requirement). At the start of a new
Congress, the House typically adopts the constituted rules in effect at the end of the last Congress, with specified
modifications. The House has not altered the CAS requirement since its original adoption. See H.R. Res. 5, 114th
Cong. (2015); H.R. Res. 5, 115th Cong. (2017); H.R. Res. 6, 116th Cong. (2019); H.R. Res. 8, 117th Cong. (2021);
H.R. Res. 5, 118th Cong. (2023).
5 See infra “House Rule XII, Clause 7(c), and Constitutional Authority Statements.”
6 See THE FEDERALIST NO. 47, at 269 (James Madison) (Clinton Rossiter ed., 1999).
7 See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 594 (1985) (Brennan, J., concurring).
8 J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928).
9 Id.
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Congress’s legislative power is cabined by the terms of the Constitution. Article I, Section 1 of
the Constitution vests “all legislative Powers herein granted ... in a Congress of the United
States,” with the phrase “herein granted” indicating that the Congress’s authority to legislate is
“confined to those powers expressly identified in the document.”10 As a result, the Supreme Court
has interpreted Article I’s Vesting Clause as providing Congress only specified or “enumerated
powers.”11 As the Court noted in United States v. Morrison, “[e]very law enacted by Congress
must be based on one or more of its powers enumerated in the Constitution.”12
Congress’s Powers
Congress’s specified powers are primarily, but not exclusively, found in Section 8 of Article I of
the Constitution. This section contains eighteen clauses, seventeen of which enumerate relatively
specific powers granted to the Congress.13 Among the powers enumerated in Article I, Section 8,
are Congress’s powers to:
 impose taxes,14 and spend the money collected to pay debts and provide for the
“common Defence” and “general Welfare;”15
 regulate commerce;16
 establish laws respecting naturalization and bankruptcy;17
 regulate currency;18
 establish post offices and roads;19
 promote the “Progress of Science and useful Arts” by giving authors and
inventors “exclusive rights” to their writings and discoveries (i.e., copyright and
patent protections);20 and
 establish a judicial system.21

10 U.S. CONST. art. 1, § 1; see Zivotofsky v. Kerry, 576 U.S. 1, 34–35 (2015) (Thomas, J., concurring in part and
dissenting in part); Printz v. United States, 521 U.S. 898, 919 (1997) (noting that the Constitution conferred upon
Congress “not all governmental powers, but only discrete, enumerated ones.”); Marbury v. Madison, 5 U.S. (1 Cranch)
137, 176 (1803) (“The powers of the legislature are defined, and limited.... ”).
11 Kansas v. Colorado, 206 U.S. 46, 81 (1907); see also Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018) (“The
legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress
not plenary legislative power but only certain enumerated powers.”).
12 529 U.S. 598, 607 (2000).
13 See U.S. CONST. art. I, § 8.
14 Id. art. I, § 8, cl. 1. The taxing power of Article I is limited by the requirements that money collected be spent to “pay
the Debts and provide for the common Defence and general Welfare of the United States”; and taxes must be “uniform
throughout the United States.” Id. The Sixteenth Amendment to the Constitution further empowers Congress to lay and
collect taxes on incomes. See id. amend. XVI.
15 See id. art. I, § 8, cl. 1.
16 Id. art. I, § 8, cl. 3.
17 Id. art. I, § 8, cl. 4.
18 Id. art. I, § 8, cls. 5–6.
19 Id. art. I, § 8, cl. 7.
20 Id. art. I, § 8, cl. 8.
21 Id. art. I, § 8, cl. 9.
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In addition, six of the clauses in Article I, Section 8, deal exclusively with wartime and military
matters and include Congress’s power to declare war and provide for an Army and a Navy.22
Outside of Article I, Section 8, the Constitution contains several other provisions providing
Congress with a specified power. For example, Article IV of the Constitution empowers Congress
to enact laws regulating the validity of state “public Acts, Records, and judicial Proceedings”23
and rules respecting the territory and property belonging to the United States.24 Article V
authorizes Congress to propose amendments to the Constitution.25 Several constitutional
amendments also provide Congress with the power to enact certain legislation. For instance, the
Thirteenth, Fourteenth, and Fifteenth Amendments, adopted following the Civil War, empower
Congress to “enforce” the amendments’ provisions prohibiting slavery,26 preventing the
deprivation of certain civil rights,27 and outlawing the denial or abridgment of the right to vote on
account of “race, color, or previous condition of servitude.”28
The Necessary and Proper Clause
The final clause of Article I, Section 8, the Necessary and Proper Clause, supplements Congress’s
enumerated powers, providing the legislative branch the power to adopt measures that assist in
the achievement of ends contemplated by other provisions in the Constitution.29 Specifically, that
clause provides Congress with the power to make “all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or Officer thereof.”30 The Supreme
Court has interpreted the scope of Congress’s power under the Necessary and Proper Clause as
“broad,”31 in that the clause leaves to “Congress a large discretion as to the means that may be
employed in executing a given power.”32 In so holding, the Court has described the clause as
providing the broad power to enact laws that are “‘convenient, or useful’ or ‘conducive’” to the
exercise of another constitutional authority.33 For example, the Court has upheld legislation
criminalizing perjury and witness tampering as an extension of Congress’s power to constitute
federal tribunals.34 Similarly, the Court upheld legislation prohibiting the bribery of officials who
receive federal funds, as an extension of Congress’s power to “appropriate federal moneys to
promote the general welfare.”35 The Court has also taken the view that other powers, such as the

22 Id. art. I, § 8, cls. 11–16 (defining Congress’s power to declare war and to raise, support, and regulate the military
and militia).
23 Id. art. IV, § 1.
24 Id. art. IV, § 3, cl. 2.
25 Id. art. V.
26 Id. amend. XIII.
27 Id. amend. XIV.
28 Id. amend. XV.
29 For example, the Court has recognized that Congress, through the Necessary and Proper Clause, has the power to
enact legislation to implement U.S. treaty obligations, as such legislation that may be necessary to give effect to the
federal government’s power to make treaties under Article II, Section 2, clause 2. See Missouri v. Holland, 252 U.S.
416 (1920); Neely v. Hinkel, 180 U.S. 109 (1901).
30 See U.S. CONST. art. I, § 8, cl. 18.
31 United States v. Kebodeaux, 570 U.S. 387, 394 (2013); United States v. Comstock, 560 U.S. 126, 133 (2010).
32 Lottery Case, 188 U.S. 321, 355 (1903).
33 See Comstock, 560 U.S. at 134 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819)).
34 Jinks v. Richland Cnty., 538 U.S. 456, 462 (2003).
35 Sabri v. United States, 541 U.S. 600, 605 (2004).
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power to conduct oversight, are implied from the general vesting of legislative powers in
Congress.36
Importantly, however, courts have not construed the Necessary and Proper Clause as an
independent source of power for Congress that, standing in isolation, permits Congress to enact
legislation. As the Supreme Court has noted, the clause is “not itself a grant of power, but a
caveat that the Congress possesses all the means necessary to carry out the specifically granted
‘foregoing’ powers of § 8 ‘and all other Powers vested by this Constitution.’”37 Instead, in
legislating, Congress “must rely upon its independent (though quite robust) Article I, § 8, powers”
or on other powers implicitly or explicitly vested elsewhere in the Constitution to Congress.38
Importantly as well, the Necessary and Proper Clause authorizes Congress not only to take action
to assist in the execution of its own powers under the Constitution, but also to provide support for
the execution of “all other Powers vested by this Constitution in the Government of the United
States.”39 Pursuant to this authority, Congress may enact legislation to assure the proper exercise
of powers given to other branches of the federal government.40 For example, the Supreme Court
has characterized immigration legislation as necessary and proper to carry out the enumerated
constitutional powers of the political branches and also as giving effect to the federal
government’s “inherent” sovereign power to decide when foreign subjects may enter the
country.41
Limits on Congress’s Powers
While the Constitution affirmatively grants Congress the authority to legislate on certain matters,
its powers are not unlimited. The Supreme Court has held that the Constitution imposes limits on
Congress’s exercise of its enumerated powers.42 For instance, in United States v. Lopez, the
Supreme Court interpreted the Commerce Clause as empowering Congress to regulate “three

36 See, e.g., Nixon v. Adm’r of Gen. Servs., 433 U.S. 435 (1977); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491
(1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McGrain v.
Daugherty, 273 U.S. 135 (1927). See also Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2019) (recognizing that
while Congress has “no enumerated constitutional power to conduct investigations or issue subpoenas,” it has the
power to “secure needed information in order to legislate,” which is an “essential and appropriate auxiliary to the
legislative function”) (internal quotation marks and citations omitted).
37 Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247 (1960) (emphasis in original).
38 Bond v. United States, 572 U.S. 844, 875 (2014) (Scalia, J., concurring).
39 See U.S. CONST. art. I, § 8, cl. 18.
40 See, e.g., Jinks v. Richland Cnty., 538 U.S. 456, 462 (2003) (recognizing judicial tolling provision in federal statute
as being necessary and proper for carrying into execution both Congress’s power under Article I to constitute tribunals
inferior to the Supreme Court and to assure that federal courts could “fairly and efficiently exercise ‘the judicial Power
of the United States’” under Article III); Neely v. Hinkel, 180 U.S. 109, 121 (1901) (recognizing congressional
authority to enact legislation that is necessary and proper to carry out the stipulations of a treaty made by the President
with the advice and consent of the Senate); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506 (1871) (“The President is the
commander-in-chief of the army and navy, and of the militia of the several States, when called into the service of the
United States, and it is made his duty to take care that the laws are faithfully executed. Congress is authorized to make
all laws necessary and proper to carry into effect the granted powers.”); Wayman v. Southard, 23 U.S. (10 Wheat.) 1,
22 (1825) (recognizing congressional authority to enact measures necessary and proper for carrying into execution
federal court judgments).
41 Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). See generally Cong. Rsch. Serv., Overview of Congress's
Immigration Powers
, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S8-C18-8-
1/ALDE_00001255/ (last visited Feb. 15, 2023).
42 See CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, coordinated by
Kevin J. Hickey.
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broad categories of activities”: (1) “channels of interstate commerce,” like roads and canals; (2)
“persons or things in interstate commerce,” and (3) activities that substantially affect interstate
commerce.43 Having determined those limits to the clause, the Court held that Congress’s power
over commerce did not permit it to enact legislation prohibiting the possession of guns near a
school (absent a connection to commercial activity) because such legislation does not regulate an
economic activity that substantially affects interstate commerce.44 Likewise, the Court has
interpreted the Fourteenth Amendment’s Enforcement Clause as necessarily requiring a
“congruence and proportionality” between the injury to be prevented or remedied by
congressional legislation and the means that Congress adopted to that end.45 Applying this
standard in City of Boerne v. Flores, the Court held that Congress exceeded the scope of its
enforcement power under the Fourteenth Amendment by enacting the Religious Freedom
Restoration Act insofar as that law unduly invaded the sovereign rights of the states.46
Beyond the limits on Congress’s enumerated powers, the Constitution also imposes additional
constraints on congressional action.47 Within the text of the Constitution, Article I, Section 9, lists
specific constraints on the power of the federal government. Section 9 prohibits Congress from
suspending the writ of habeas corpus in peacetime;48 passing bills of attainder or ex post facto
laws;49 imposing taxes or duties on exports “from any state”;50 and granting titles of nobility.51
Section 9 also provides that Congress can suspend the writ of habeas corpus only in “cases of
rebellion or invasion” when “public safety may require” such a suspension.52 Similarly, money
can be drawn from the Treasury only upon an appropriation made by law.53
Other constitutional constraints prohibit congressional interference with the rights that individuals
retain under the Constitution,54 including under the first ten amendments, more commonly known
as the Bill of Rights. The First Amendment, for example, prohibits Congress from enacting a law

43 514 U.S. 549, 558 (1995).
44 Id. at 567–68. Congress subsequently amended the statute to expressly provide that, in order for the possession of a
firearm in a school zone to be a federal offense, the government must demonstrate that the firearm “moved in or that
otherwise affects interstate or foreign commerce.” 18 U.S.C. § 922(q)(2). This amended version of the statute has been
upheld in the face of constitutional challenges. See, e.g., United States v. Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005),
overruled in part by Arizona v. Gant 556 U.S. 332, 342 (2009); United States v. Danks, 221 F.3d 1037, 1039 (8th Cir.
1999).
45 City of Boerne v. Flores, 521 U.S. 507, 520 (1997), superseded by statute, Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc, as recognized in Burwell v. Hobby Lobby Stores,
Inc., 573 U.S. 682, 695–696 (2014); CRS Report R45323, supra note footnote 42.
46 City of Boerne, 521 U.S. at 520.
47 See United States v. Comstock, 560 U.S. 126, 135 (2010) (noting that “a federal statute, in addition to being
authorized by Art. I, § 8, must also ‘not [be] prohibited’ by the Constitution.”) (citing McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 421 (1819)); see also Saenz v. Roe, 526 U.S. 489, 508 (1999) (“[L]egislative powers are, however,
limited not only by the scope of the Framers’ affirmative delegation, but also by the principle “that they may not be
exercised in a way that violates other specific provisions of the Constitution.”).
48 See U.S. CONST. art. I, § 9, cl. 2.
49 Id. art. I, § 9, cl. 3.
50 Id. art. I, § 9, cl. 5.
51 Id. art. I, § 9, cl. 8.
52 Id. art. I, § 9, cl. 3.
53 Id. art. I, § 9, cl. 7.
54 See, e.g., U.S. CONST. art. III, § 2, cl. 3 (providing for the right to a trial by jury in all criminal cases).
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that abridges the freedom of speech.55 Congress cannot pass a law that violates that prohibition
even if it is plainly legislating pursuant to one of its enumerated powers.56
More broadly, Congress’s powers are also constrained by principles undergirding the Constitution
such as federalism and separation of powers. Federalism constraints are grounded in states’ status
as separate and distinct sovereign entities57 and seek to preserve states’ retained prerogatives
under the U.S. constitutional system by enforcing certain limits on the federal government’s
jurisdiction.58 For instance, the Supreme Court has identified federalism-based constraints
stemming from the Tenth Amendment, which provides that “[t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”59 The Tenth Amendment prevents the federal government from
“commandeering” or requiring state executive officers or state legislators to carry out federal
directives.60 Similarly, the Court has held that Congress cannot indirectly commandeer state
governments by imposing limits on monetary grants that functionally coerce states, leaving them
with no choice but to comply with a federal directive.61
Similarly, separation of powers constraints are concerned with the proper allocation of authority
among the three branches within the federal government.62 The Constitution assigns each branch
of government distinct, but interrelated, roles, and one branch may not aggrandize its power by
attempting to exercise powers assigned to another branch.63 For example, the Appointments
Clause of the Constitution gives the President the authority to appoint principal officers of the
United States with the Senate’s advice and consent.64 Thus, when Congress purported to reserve
to itself the right to appoint certain members of the Federal Election Commission in 1971, the
Supreme Court struck down that law as being in violation of the Appointments Clause.65

55 See U.S. CONST. amend. I.
56 See, e.g., United States v. Alvarez, 567 U.S. 709 (2012) (holding that the federal Stolen Valor Act constituted a
content-based restriction on free speech in violation of the First Amendment).
57 Shelby Cnty. v. Holder, 570 U.S. 529, 543 (2013) (“Outside the strictures of the Supremacy Clause, States retain
broad autonomy in structuring their governments and pursuing legislative objectives.”); Gamble v. United States, 139
S. Ct. 1960, 1968 (2019) (“When the original States declared their independence, they claimed the powers inherent in
sovereignty …. The Constitution limited but did not abolish the sovereign powers of the States, which retained ‘a
residuary and inviolable sovereignty.’” (citing THE FEDERALIST NO. 39, at 245 (James Madison) (Clinton Rossiter ed.,
1961)).
58 See Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of
the Sweeping Clause,
43 DUKE L.J. 267, 297 (1993). For a primer on the various federalism limits on Congress’s
powers, see CRS Report R45323, supra note footnote 42.
59 See U.S. CONST. amend. X.
60 Printz v. United States, 521 U.S. 898, 935 (1997); see also Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018)
(describing commandeering as “the power to issue orders directly to the States”).
61 Compare, e.g., South Dakota v. Dole, 483 U.S. 203, 211 (1987), with Nat’l Fed’n of Indep. Bus. v. Sebelius, 567
U.S. 519, 581–582 (2012).
62 See Clinton v. Jones, 520 U.S. 681, 699 (1997).
63 See Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam) (“The Framers regarded the checks and balances that they
had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other.”), superseded by statute, Bipartisan Campaign Reform Act
of 2002, Pub. L. No. 107-155, 116 Stat. 81. The Court has allowed Congress to confer decisionmaking authority upon
executive agencies so long as the legislature “lay[s] down ... an intelligible principle to which the person or body
authorized to [act] is directed to conform.” J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
64 See U.S. CONST. art. II, § 2, cl. 2.
65 See Buckley, 424 U.S. at 140. See also Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197, 2211
(2020) (by establishing the Consumer Financial Protection Bureau’s leadership “by a single individual removable only
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Role of Congress in Interpreting the Constitution
Given the powers of Congress and the limits on those powers under the Constitution, the question
remains as to which branch of the federal government may interpret the scope of Congress’s
powers. The question is one that has been debated from the early years of the Republic. In its
1803 decision in Marbury v. Madison, the Supreme Court held that the logic of having a written
Constitution that enumerates the legal limits imposed on the federal government, coupled with the
tenure protections provided to the federal judiciary under the Constitution,66 confirmed the
Supreme Court’s role in interpreting the Constitution.67 Pursuant to Marbury’s famous command,
it is “the province and duty of the judicial department to say what the law is.”68
Marbury firmly established that the judicial branch has a role in interpreting the Constitution,
including the power to strike down laws held to be incompatible with the founding document. It
did not, however, expressly state that the judiciary has a final or even exclusive role in defining
the basic powers and limits of the federal government. To the contrary, the early history of the
United States is replete with examples of all three branches of the federal government playing a
role in constitutional interpretation. Both Congress and the Executive openly questioned the
Supreme Court’s pronouncements on constitutional law, such as the Court’s rulings on the
National Bank or slavery.69 Thomas Jefferson believed that “each of the three departments has
equally the right to decide for itself what is its duty under the Constitution, without any regard to
what the others may have decided for themselves under a similar question.”70 Indeed, Congress
spent “a considerable amount of time” “debating the constitutional limitations on” legislation
during the first 100 years of the nation.71
In the mid-twentieth century, however, the Supreme Court began articulating a theory of judicial
supremacy wherein the Court no longer shared its role in interpreting the Constitution with the
other branches of the federal government and instead characterized itself as the preeminent arbiter
of the Constitution’s meaning. For example, in Cooper v. Aaron, the Court read Marbury as
“declaring the basic principle that the federal judiciary is supreme in the exposition of the law of
the Constitution, and [this] principle has ever since been respected by this Court and the Country
as a permanent and indispensable feature of our constitutional system.”72 This view implies that
constitutional interpretations by other actors, including Congress, lack the same force as the
judiciary’s interpretations.73 Supporters of the judicial supremacy view assert that it promotes

for inefficiency, neglect, or malfeasance” Congress violated separation of powers principles because the Constitution
grants executive power to the President to “supervise and remove the agents who wield executive power in his stead”).
66 See, e.g., U.S. CONST. art. III, § 1 (providing that judges shall hold their offices during “Good Behavior” and that
their compensation shall not be diminished during their continuance in office).
67 See 5 U.S. (1 Cranch) 137, 177–78 (1803).
68 See id. at 177.
69 See generally CRS Report R43706, The Doctrine of Constitutional Avoidance: A Legal Overview, by Andrew Nolan,
at 4–5 (providing an overview of various debates between the three branches over the meaning of the Constitution).
70 Letter from Thomas Jefferson to Judge Spencer Roane Poplar Forest (Sept. 6, 1819), http://www.let.rug.nl/usa/
presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl257.php.
71 See Russ Feingold, The Obligation of Members of Congress to Consider Constitutionality While Deliberating and
Voting: The Deficiencies of House Rule XII and A Proposed Rule for the Senate,
67 VAND. L. REV. 837, 846–49 (2014);
see generally DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS 120 nn.25–27 (1997) (cataloging various
constitutional debates during early Congresses).
72 358 U.S. 1, 18 (1958).
73 The Court has, at times, grounded this principle in the concern that if Congress were the “final judge of its own
power under the Constitution,” such a system would run contrary to notions of a limited and checked government.
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stability and uniformity in constitutional interpretation,74 as well as preserves constitutional
norms from majoritarian pressures.75 The Court’s decision in Cooper, coupled with broader
institutional factors that may further constrain Congress’s ability to engage in constitutional
interpretation, may have led the coordinate branches of government to recede from the role of
constitutional interpretation.76 As a result, while Congress certainly continues to debate about the
Constitution during the legislative process,77 in the modern era, the Court’s views on the
Constitution are generally more influential than those of the other branches of government.
The theory of judicial supremacy is far from a consensus view,78 and several aspects of the
American constitutional system may counsel for a more robust role for Congress in constitutional
interpretation. In recent decades, a number of legal scholars and government officials have
criticized the judicial supremacy view.79 This view suggests that Congress and others outside of
the government possess independent and coordinate authority to interpret the Constitution.
Supporters of this view point to the Constitution’s requirement that all Members of Congress “be

Baltimore & O. R. Co. v. United States, 298 U.S. 349, 364 (1936).
74 See Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359,
1369–81 (1997) (defending judicial supremacy because finality in constitutional interpretation provides stability and
coordination in a constitutional democracy).
75 See Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 CALIF. L. REV. 1013,
1018–24 (2004) (arguing for judicial supremacy because of concerns that a majoritarian Congress might interpret the
Constitution in such a way as to not adequately protect minority rights).
76 See Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine, 21 GA. L.
REV. 57 (1986) (“By the second half of the twentieth century, both the House and the Senate had abandoned the
tradition of deliberating over ordinary constitutional issues.”); Hanah Metchis Volokh, Constitutional Authority
Statements in Congress
, 65 FLA. L. REV. 173, 185 (2013) (noting that some Members of Congress have “tak[en] the
judicial supremacy position,” “claiming that the Constitution is the domain of the courts.”). See also Feingold, supra
note 71, at 849–850 (noting the decline of constitutional interpretation by Members of Congress following Cooper v.
Aaron
and the “rise of judicial supremacy”). See also Feingold, supra note 71, at 851 (arguing that Members of
Congress lack “the time and technical sophistication” to understand the constitutional complexities of each bill, as well
as the “political incentive to inquire into the constitutionality of each piece of legislation.”); see also Abner Mikva,
How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV. 587, 587 (1983) (concluding that
Congress has neither the institutional nor the political capacity to engage in effective constitutional interpretation); but
see
Louis Fisher, Constitutional Interpretation by Members of Congress, 63 N.C. L. REV. 707, 708 (1985) (arguing that
“Congress can perform an essential, broad, and ongoing role in shaping the meaning of the Constitution.”).
77 See Bruce G. Peabody, Congressional Constitutional Interpretation and the Courts: A Preliminary Inquiry into
Legislative Attitudes, 1959–2001,
29 L. & SOC. INQUIRY 127, 148 (2004) (noting that “today’s [Members of Congress]
... seek advice on constitutional questions within Congress itself, turning to colleagues, committees, and respected
institutions like the [Congressional Research Service].”)
78 See Volokh, supra note 76, at 179 (“Most scholars believe that the Supreme Court is not the sole authorized
interpreter of the Constitution.”).
79 Gary Lawson, What Lurks Beneath: NSA Surveillance and Executive Power, 88 B.U. L. REV. 375, 381 n.30 (2008)
(“[T]here is no good reason to think that Supreme Court opinions are better evidence of that meaning than are the
pronouncements of the Department of Justice, the Congressional Research Service, or Gary Lawson—and there are
good reasons to think them worse.”); see also Mark V. Tushnet, The Constitution Outside the Courts: A Preliminary
Inquiry
, 26 VAL. U. L. REV. 437, 437–38 (1992) (arguing that “Constitutional law is obsessed with the Supreme Court,”
and there is a “much richer terrain to explore” with regard to non-Court actors and their interpretations of the
Constitution); Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of
Constitutional Culture
, 93 GEO. L.J. 897, 899 (2005) (describing a “growing body of scholarship” discussing the
concept of “popular constitutionalism,” the idea that “the People and their elected representatives should—and often
do—play a substantial role in the creation, interpretation, evolution, and enforcement of constitutional norms.”); Edwin
Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 985–86 (1987) (“The Supreme Court, then, is not the only
interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the
Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the
performance of its official functions.”).
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bound by Oath or Affirmation ... to support [the] Constitution.”80 The Supreme Court has
accounted for that constitutional duty both explicitly81 and in affording a presumption of
constitutionality to laws passed by Congress.82 In addition, if Congress opts not to engage in
interpreting the Constitution, a vacuum could arise in constitutional dialogue83 because various
judicially crafted doctrines generally serve to keep the courts from making pronouncements on a
wide range of constitutional questions.84 Indeed, as Justice Anthony Kennedy observed in his
concurring opinion in the 2018 case of Trump v. Hawaii, because there are “numerous instances
in which the statements and actions of Government officials are not subject to judicial scrutiny or
intervention,” it is “imperative” for public officials to “adhere to the Constitution and to its
meaning and promise.”85
House Rule XII, Clause 7(c), and Constitutional
Authority Statements
Originally adopted as an amendment to House Rule XII on January 5, 2011,86 the CAS rule
prohibits Members from introducing a bill or joint resolution without a “statement citing as
specifically as practicable the power or powers granted to Congress in the Constitution to enact
the bill or joint resolution.”87 The current CAS rule functionally replaced a requirement that
existed during the 105th through 111th Congresses, mandating that committee reports for bills
reported out of committee “include a statement citing the specific powers granted to the Congress
in the Constitution to enact the law proposed by the bill or joint resolution.”88 A CAS is not part
of the text of the legislation; instead, it “accompanie[s]” the legislation.89 The CAS must be
“submitted at the time the bill or joint resolution” is presented for introduction and referral, that

80 See U.S. CONST. art. VI, § 1, cl. 3.
81 Cf. Boumediene v. Bush, 553 U.S. 723, 738 (2008) (“The usual presumption is that Members of Congress, in accord
with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one....
”); see also Trump v. Hawaii, 138 S. Ct. 2392, 2424 (2018) (Kennedy, J., concurring) (remarking that the “oath that all
officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even
comment upon what those officials say or do”); see generally Volokh, supra note 76, at 183–84.
82 See U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 184 (1980) (“The enactments of Congress are entitled to a presumption
of constitutionality.... ”); see also Volokh, supra note 71, at 182–83.
83 See Fritz, 449 U.S. at 181–82.
84 See Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 DUKE L.J. 1277, 1278
(2001) (“Consider the large domain of constitutional decisionmaking over which the Supreme Court has essentially
ceded control to the political branches by articulating deferential standards of review, limits on standing and
justiciability, and the political-question doctrine. Impeachments and many issues involving electoral processes
generally lie within this domain, and other questions do as well.”).
85 138 S. Ct. at 2424 (Kennedy, J., concurring).
86 See H.R. Res. 5, 112th Cong. (2011) (adopting the rules for the 112th Congress).
87 See HOUSE RULE XII cl. 7(c)(1). The Rule does not extend to concurrent or simple resolutions. Id. The House Rules
permit the chair of a committee of jurisdiction to submit a CAS with regard to any Senate bill or joint resolution before
that committee. See id. XXII cl. 7(c)(2).
88 See H.R. Res. 5, § 13, 105th Cong. (1997).
89 See HOUSE RULE XII cl. 7(c)(1).
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is, when the legislation is dropped in the “hopper.”90 The submitted CAS appears in the
Congressional Record and is published electronically on Congress.gov.91
Compliance with the CAS Rule
While the rule, on its face, requires Members to provide as “specific[] as practicable” “a
statement citing ... the power or powers granted to Congress in the Constitution to enact the bill or
joint resolution,” it is silent on various details.92 For example, the rule does not prescribe any
particular format or level of detail for CASs. Shortly after the rule was adopted, the House
Committee on Rules (Rules Committee) provided the following five examples of citations to
constitutional authority:
1. “The constitutional authority on which this bill rests is the power of Congress to
make rules for the government and regulation of the land and naval forces, as
enumerated in Article I, Section 8, Clause 14 of the United States Constitution.”
2. “This bill is enacted pursuant to Section 2 of Amendment XV of the United
States Constitution.”
3. “This bill is enacted pursuant to the power granted to Congress under Article I,
Section 8, Clause 3 of the United States Constitution.”
4. “The Congress enacts this bill pursuant to Clause 1 of Section 8 of Article I of the
United States Constitution and Amendment XVI of the United States
Constitution.”
5. “This bill makes specific changes to existing law in a manner that returns power
to the States and to the people, in accordance with Amendment X of the United
States Constitution.”93
This guidance suggests that compliant CASs should generally discuss the affirmative
constitutional authority that empowers Congress to enact particular legislation but need not
discuss other constraints on Congress’s powers to enact the legislation. For example, under this
guidance, a CAS for a bill that proposed to ban all interstate shipments of religious pamphlets
could be seen as compliant if it cited the Commerce Clause as the source of congressional power,
even if it did not address whether the bill was consistent with the Free Exercise and Free Speech
Clauses of the First Amendment. Nonetheless, the last example provided by the Rules Committee
suggests that a citation to a provision of the Constitution that does not explicitly grant power to
the Congress—such as the Tenth Amendment, which preserves the powers of the states94—may
suffice to comply with the rule.

90 See Constitutional Authority Statement Forms, U.S. HOUSE OF REPRESENTATIVES, OFF. OF LEGIS. COUNS.,
https://legcoun.house.gov/members/HOLC/Resources/const_auth_statement.html (last accessed Feb. 22, 2023). House
Legislative Counsel has prepared a form to facilitate submission of CASs. See Constitutional Authority Statement, U.S.
HOUSE OF REPRESENTATIVES, OFF. OF LEGIS. COUNS., https://legcoun.house.gov/members/HOLC/Resources/
casform.pdf (last visited Feb. 22, 2023).
91 See HOUSE RULE XII cl. 7(c)(1).
92 Id.
93 See New Constitutional Authority Requirement for Introduced Legislation, COMM. ON RULES, HOUSE OF
REPRESENTATIVES (Jan. 5, 2011), https://web.archive.org/web/20110406150854/http://www.rules.house.gov/about/
PolicyDetail.aspx?NewsID=72 [hereinafter COMM. ON RULES- CAS REQUIREMENT].
94 See U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.”).
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More broadly, the Rules Committee guidance indicates that Members have significant discretion
in determining what is necessary to satisfy the rule. It is ultimately “the responsibility of the bill
sponsor to determine what authorities [he or she] wish[es] to cite and to provide that information
to the Legislative Counsel staff.”95 According to the Rules Committee, “[t]he adequacy and
accuracy of the citation of constitutional authority is a matter for debate in the committees and in
the House.”96 This suggests that the CAS rule is enforced only insofar as “the House clerk ... acts
to verify that each bill has a justification” and “not [in judging] the adequacy of the justification
itself.”97 In practice,98 outside commentators have noted that Members have generally made good-
faith efforts to comply with House Rule XII, clause 7(c).99 Such observations may be the result of
how the rule is enforced.
Studies of CAS Practices
Practices with Regard to Specificity of CASs
Studies of past practices under House Rule XII, clause 7(c), support the view that Members have
considerable leeway and discretion in crafting CASs. Professor Hanah Volokh of Emory
University conducted a study of CAS practices early in the 112th Congress, aggregating more
than 1,700 statements submitted during the first four months of 2011.100 According to Professor
Volokh, a “handful” of these statements “engage[d],” in her opinion, “in a thorough and highly
detailed explanation of the constitutional ramifications of the proposed legislation” by discussing
the Federalist Papers or Supreme Court doctrine, among other things.101 The remainder, however,
were less specific in their identification of Congress’s powers. For example, 8% of the statements
reviewed by Professor Volokh generally cited Article I, Section 8—without providing any further
specificity as to the particular clauses within that section providing constitutional support for the
proposed legislation.102
CRS has also studied CAS practices using statements from the 114th and 115th Congresses.103
First, in 2017, CRS staff examined the 937 statements submitted between July 1, 2016, and

95 See COMM. ON RULES- CAS REQUIREMENT, supra note 93.
96 See id.
97 See COMM. ON RULES, HOUSE OF REPRESENTATIVES, TEXT AND SECTION-BY-SECTION ANALYSIS OF THE 112TH
CONGRESS HOUSE RULES PACKAGE (2011), https://rules.house.gov/publication/text-and-section-section-analysis-112th-
congress-house-rules-package. An early dispute in the Subcommittee on Health of the Energy and Commerce
Committee over the sufficiency of a CAS was resolved by the Chair of the Subcommittee, acting on advice from the
Parliamentarian and the House Rules Committee, in favor of a fairly lenient interpretation of what is required to
comply with the CAS rule. See Volokh, supra note 76, at 194–96. Specifically, the Chair ruled that a point of order
“cannot be used to object that the content of a CAS was incorrect or insufficient.” Id. at 196. This ruling prompted one
commentator to suggest that “The fact that the CAS document [is] filed with something written on it is enough to fulfill
the requirement in the House Rules.” See id.
98 For additional discussion on the procedural requirements related to the CAS rule, see CRS Report R44001,
Introducing a House Bill or Resolution, by Mark J. Oleszek.
99 See Feingold, supra note 71, at 843 (“The early scholarship on these new CASs shows substantial compliance with
the new rule.... ”); see also Volokh, supra note 76, at 174 (noting that CASs are “flowing through Congress at the rate
of several hundred per month.”). In the CRS studies conducted for this report, see infra “Studies of CAS Practices,” of
the 2,047 bills and joint resolutions examined, all had a corresponding CAS.
100 See Volokh, supra note 76, at 178.
101 Id. at 198.
102 Id. (noting that 142 of 1,709 statements “cite Article I, Section 8 without further specificity”).
103 Professor Volokh’s survey of initial practices with regard to the CAS rule may have reflected an initial zealousness
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January 1, 2017, consisting of thirteen joint resolutions and 924 bills.104 In 2019, CRS staff
examined 1,110 statements submitted between July 1, 2018, and January 2, 2019, consisting of
ten joint resolutions and 1,100 bills.105 Most commonly, in 58% of cases, the CAS cited to a
specific clause in Article I, Section 8, such as the Taxing and Spending Clause or the Commerce
Clause.106 Few of the submissions consisted of more than a bare citation to an affirmative power
granted to Congress in the Constitution. For example, four statements examined from 2016 and
six from 2018 explicitly discussed Supreme Court case law that purportedly support the bill or
joint resolution. Forty-four of the statements from 2016 and thirteen statements from 2018 cited
to provisions of the Constitution that constrain rather than empower Congress or one of the other
federal branches, such as the restrictions in Article I, Section 9, or the Bill of Rights. It was
uncommon for a CAS to go beyond the scope of the rule to detail why the constitutional
provision cited empowers Congress to enact the proposed legislation.
In line with the study from the 112th Congress, CRS found that numerous statements submitted
during the sample periods in the 114th and 115th Congresses contained general, rather than
specific, references to the Constitution. As Table 1 below indicates, the most frequent
constitutional authority cited for legislation during the sample period was a general reference to
Article I, Section 8, of the Constitution.107 This occurred in 32% of all CASs during the sample
period, a marked increase from the Volokh study of the 112th Congress.108 Similarly, the seventh
most frequently cited constitutional provisions during the sample period was even broader: a
general reference to Article I of the Constitution.109
Table 1. Most Frequently Cited Constitutional Sources in CASs in Legislation
Introduced During the 114th and 115th Congresses
Based on a Review of 2,047 Bills and Joint Resolutions Introduced from July 1, 2016, to January 1, 2017,
and from July 1, 2018, to January 2, 2019

Number of Times Cited
General reference to Article I, Section 8
654
Article I, Section 8, clause 18 (Necessary and Proper Clause)
500
Article I, Section 8, clause 1 (Taxing and Spending Clause)
416
Article I, Section 8, clause 3 (Commerce Clause)
372
Article IV, Section 3, clause 2 (Property Clause)
85

by Members in complying with the rule. See Volokh, supra note 76, at 178. CRS’s survey, in part, may provide insight
into whether compliance with the rule decreased over time or whether compliance improved “as Representatives and
their staff bec[a]me more familiar with constitutional analysis.” See id.
104 Of the 937 CASs examined from the 114th Congress, 611, or 65%, cited a specific provision within the
Constitution, as opposed to a general section or article of the Constitution. See Table 1.
105 Of the 1,110 CASs examined from the 115th Congress, 693, or 62%, cited a specific provision within the
Constitution, as opposed to a general section or article of the Constitution. See Table 1.
106 Of the 937 examined CASs from the 114th Congress, 542, or 58%, cited to a specific clause in Article I, Section 8.
See Table 1. Of the 1,110 examined CASs from the 115th Congress, 649, or 58%, cited to a specific clause in Article I,
Section 8.
107 See Table 1.
108 Of the 937 CASs examined from the 114th Congress, 284 had a general reference to Article I, Section 8. Of the
1,110 CASs examined from the 115th Congress, 370 had a general reference to Article I, Section 8.
109 See Table 1.
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Number of Times Cited
Article I, Section 8, clause 4 (Naturalization Clause)
44
General reference to Article I
43
Article I, Section 9, clause 7 (Appropriations Clause)
36
Article I, Section 8, clause 7 (Postal Clause)
34
Article I, Section 8, clause 14 (Military Regulation Clause)
32
Source: Congressional Research Service, based on a search of Congress.gov for bil s and joint resolutions
introduced in the House from July 1, 2016, to January 1, 2017, and from July 1, 2018, to January 2, 2019.
Notes: A single CAS may cite multiple sources of constitutional authority.
In 342 cases, the Necessary and Proper Clause was the sole authority source cited.
Practices with Regard to Particular Clauses Cited in CASs
The content of CASs with regard to particular clauses has, at times, spurred criticism from a wide
range of commentators.110 One notable issue is that in some cases, Members appear to rely on
particular clauses in a way that suggests their interpretation diverges from historical
understandings or judicial interpretations of that clause.
Necessary and Proper Clause
One of the most frequently cited clauses in CASs during the sample periods was the Necessary
and Proper Clause, which allows Congress to “make all Laws which shall be necessary and
proper for carrying into Execution” the powers enumerated in Article I and “all other Powers
vested by [the] Constitution in the Government of the United States, or in any Department or
Officer thereof.” 111 About a quarter of all CASs in the CRS studies contained a citation to that
clause, with 14% of the 2016 CASs and 19% of the 2018 CASs citing the Necessary and Proper
Clause as the sole power to enact the underlying legislation.112 The Framers and the Supreme
Court, however, have not generally characterized that clause as a source of power for Congress to
do whatever is “necessary and proper” but only as an authorization of congressional action that is
“‘incidental to [an enumerated] power, and conducive to its beneficial exercise.’”113

110 See, e.g., HORACE COOPER & NATHANIEL STEWART, CONSTITUTIONAL AUTHORITY STATEMENTS: IN DEFENSE OF
HOUSE RULE XII (2012), http://www.constitutingamerica.org/docs/WhitePaper.pdf (“Members on both sides of the
aisle have made a number of common, substantive mistakes in drafting their Constitutional Authority Statements.”);
Ilya Shapiro, Whither Constitutional Authority Statements?, CATO AT LIBERTY (Oct. 18, 2011), https://www.cato.org/
blog/whither-constitutional-authority-statements (describing the CASs surveyed by the Republican Study Committee as
“[p]retty thin gruel”).
111 See U.S. CONST. art. I, § 8, cl. 18.
112 See Table 1.
113 United States v. Kebodeaux, 570 U.S. 387, 401–3 (2013) (Roberts, C.J., concurring) (citing McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 420–21 (1819)); see Kansas v. Colorado, 206 U.S. 46, 88 (1907) (“The last
paragraph of the section which authorizes Congress to make all laws which shall be necessary and proper for carrying
into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United
States, or in any department or office thereof, is not the delegation of a new and independent power, but simply
provision for making effective the powers theretofore mentioned.”); McCulloch, 17 U.S. (4 Wheat.) at 420–21 (noting
that the Necessary and Proper Clause is not a “great substantive and independent power” like the “power of making
war, or levying of taxes, or of regulating commerce”). See also THE FEDERALIST NO. 33, at 171 (Alexander Hamilton)
(Clinton Rossiter ed., 1999) (“[T]he sweeping clause ... authorizes the national legislature to pass all necessary and
proper laws. If there is anything exceptionable, it must be sought for in the specific powers upon which this general
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General Welfare Clause
Another frequently cited provision, the “General Welfare Clause,” is a specific phrase within
Article I, Section 8, clause 1, that empowers Congress to levy certain taxes and spend the money
collected from taxation. Specifically, the first clause of Section 8 of Article I affords Congress the
power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for
the common Defence and general Welfare of the United States.”114 This clause, which is
sometimes referred to as the “Taxing and Spending Clause,”115 was the third most frequently cited
clause by CASs in CRS’s study.116 Not infrequently, however, Members also referred to this
clause in their statements as the “General Welfare Clause” and cited it for legislation unrelated to
the spending of money by the federal government. Importantly, the phrase general Welfare does
not exist in isolation in the clause but is instead tied to the preceding language in the clause
regarding the raising of revenue.117 The clause thus requires Congress to spend the money it
collects from taxation to promote the general welfare.118 While this power is considerable,119 it is
necessarily tied to spending legislation.120
Military Regulation Clause
The constitutional provision affording Congress with the power to “make rules for the
Government and Regulation of the land and naval forces”121 is another frequently cited clause in
CASs from the sample periods.122 Some of the bills citing that provision do not purport to
regulate only the United States’ armed forces but instead prescribe broad regulations for the
government as a whole. Such references to the Military Regulation Clause appear to stem from
reading the first phrase of the clause—“make rules for the Government”—in isolation from the

declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least
perfectly harmless.”); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247 (1960) (“The [Necessary and
Proper Clause] is not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry
out the specifically granted ‘foregoing’ powers of § 8 ‘and all other Powers vested by this Constitution.... ’”) (emphasis
in original).
114 See U.S. CONST. art. I, § 8, cl. 1 (emphasis added).
115 See, e.g., Flast v. Cohen, 392 U.S. 83, 102 (1968).
116 See Table 1.
117 See United States v. Butler, 297 U.S. 1, 64 (1936) (“The view that the clause grants power to provide for the general
welfare, independently of the taxing power, has never been authoritatively accepted.”); see also 2 JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 904 (Leonard W. Levy ed., 1970) (stating that if the
“generality of the words to ‘provide for the ... general welfare’” constituted a “distinct and substantial power” in the
Constitution, “it is obvious” that the government of the United States would be transformed into one of “general and
unlimited powers.... ”); THE FEDERALIST NO. 41, at 230 (James Madison) (Clinton Rossiter ed., 1999) (rejecting the
view that the Taxing and Spending Clause “amounts to an unlimited commission to exercise every power which may
be alleged to be necessary for the common defense or general welfare.”).
118 See United States v. Butler, 297 U.S. 1, 64 (1936) (holding that “the only thing granted [by the Taxing and Spending
Clause] is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision
for the general welfare.”).
119 See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013) (“The Clause provides
Congress broad discretion to tax and spend for the ‘general welfare’.... ”); see also Helvering v. Davis, 301 U.S. 619,
640-41 (1937) (holding that the “discretion” to decide how to “spend money in aid of the ‘general welfare’” “belongs
to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.”).
120 See Butler, 297 U.S. at 64.
121 See U.S. CONST. art. I, § 8, cl. 14.
122 See Table 1 (ranking the Military Regulation Clause as the tenth most frequently cited clause during the respective
study periods).
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rest of the clause, as an independent power. However, that understanding is inconsistent with
traditional interpretations of the clause, which view it as solely related to Congress’s power over
the military.123 This interpretation also runs contrary to traditional rules of legal interpretation that
counsel for reading phrases in a legal text in their context and not in isolation from the rest of the
text.124 More broadly, interpreting the Military Regulation Clause to allow Congress to direct the
actions of the federal government generally in whatever manner Congress wishes would allow the
clause to be read as an open-ended police power, something otherwise rejected by the Framers of
the Constitution.125
Appropriations Clause
A number of CASs from the sample periods cite provisions in Article I, Section 9, including
several that cite the Appropriations Clause as the authority for Congress to provide money for a
particular project.126 The Appropriations Clause states, in relevant part, that “No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by Law.”127 Like other
provisions found in Section 9 of Article I, this clause has generally not been interpreted to grant
Congress any affirmative power.128 Instead, the Appropriations Clause has been seen to function
as a restriction on the powers of the federal government, ensuring that when the federal
government spends money, “the payment of money from the Treasury must be authorized by a

123 Traditionally, the Military Regulation Clause is viewed as a “natural incident” to Article I’s preceding powers to
make war, raise armies, and provide for and maintain a navy. See 3 JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES § 1192 (Leonard W. Levy ed., 1970). In practice, the Military Regulation Clause
has been viewed by the Supreme Court to allow Congress to regulate matters like the discipline of servicemembers.
See, e.g., United States v. Kebodeaux, 570 U.S. 387, 395 (2013) (“[U]nder the authority granted to it by the Military
Regulation and Necessary and Proper Clauses, Congress could promulgate the Uniform Code of Military Justice.”);
Carter v. Roberts, 177 U.S. 496, 497–98 (1900) (“The eighth section of Art. I of the Constitution provides that the
Congress shall have power ‘to make rules for the government and regulation of the land and naval forces’ and in the
exercise of that power Congress has enacted rules for the regulation of the army known as the Articles of War.”) See
also
Dakota S. Rudesill, The Land and Naval Forces Clause, 86 U. CIN. L. REV. 391, 441 (2018).
124 See Deal v. United States, 508 U.S. 129, 132 (1993) (noting a “fundamental principle of statutory construction (and,
indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the
context in which it is used.”), superseded by statute, First Step Act of 2018, PUB. L. NO. 115-391, § 403(a), 132 Stat.
5221, as recognized in United States v. Davis, 139 S. Ct. 2319, 2324 n.1 (2019).
125 See United States v. Morrison, 529 U.S. 598, 619 n.8 (2000) (“With its careful enumeration of federal powers and
explicit statement that all powers not granted to the Federal Government are reserved, the Constitution cannot
realistically be interpreted as granting the Federal Government an unlimited license to regulate.”).
126 See Table 1 (ranking the Appropriations Clause as the eighth most frequently cited clause during the respective
study periods).
127 See U.S. CONST. art. I, § 9, cl. 8.
128 See Reeside v. Walker, 52 U.S. (11 How.) 272, 291 (1851) (“It is a well-known constitutional provision, that no
money can be taken or drawn from the Treasury except under an appropriation by Congress.”); Cincinnati Soap Co. v.
United States, 301 U.S. 308, 321 (1937) (“The provision of the Constitution ... that ‘No Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law’ was intended as a restriction upon the disbursing
authority of the Executive department ... It means simply that no money can be paid out of the Treasury unless it has
been appropriated by an act of Congress.”); see generally Robert G. Natelson, Federal Land Retention and the
Constitution’s Property Clause: The Original Understanding
, 76 U. COLO. L. REV. 327, 363 (2005) (noting that the
Appropriation Clause does “not actually authorize appropriations” and instead appropriations are “authorized by other
parts of the document.”); Panel Discussion, The Appropriations Power and the Necessary and Proper Clause, 68
WASH. U. L.Q. 623, 651 (1990) (remarks of then-Assistant Attorney General William Barr) (“The appropriations clause
is not an independent ‘power’ of Congress. It is not a power clause.... The appropriations clause is simply a procedural
provision—a requirement that Congress pass a law before it can take money out of the treasury.”).
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statute.”129 As discussed above, Congress’s power to spend money derives from the Taxing and
Spending Clause.130
Bill of Rights
While not among the most frequent citations in CASs, occasionally one of the first ten
amendments to the Constitution—the Bill of Rights—has been cited in support of Congress’s
power to enact legislation. These amendments do not themselves empower Congress to take any
action; they instead consist of “negative rights” protecting individuals from certain government
conduct.131 The Bill of Rights often prohibits congressional action.132 Congress may certainly
have an interest in legislation intended to support the individual liberties protected by the
Constitution, but the constitutional authority for such legislation may more appropriately be
found in an affirmative power of Congress, such as the powers provided in Article I, Section 8, of
the Constitution. Likewise, the Fourteenth Amendment allows Congress to “enact so-called
prophylactic legislation” aimed at “prevent[ing] and deter[ing] unconstitutional conduct.”133
Nonetheless, the House Rules Committee has suggested that a citation to a provision of the
Constitution that does not explicitly grant power to Congress may suffice to comply with the
CAS rule.134 For example, a Member seeking to rescind or narrow the scope of an existing law
could arguably believe it appropriate to identify constitutional principles found in the Bill of
Rights or elsewhere that the Member believes are advanced by the proposed legislation.135
Legal Implications of a CAS
CASs have limited legal import in that the CAS of a bill enacted into law will likely not alter a
court’s view of the constitutionality of the legislation. At bottom, a CAS is a statement by one
Member of Congress (i.e., the sponsor) when a piece of legislation is introduced. It is not
formally part of a bill or joint resolution, and it is not subject to the approval of both houses of
Congress, or presented to the President, as required by Article I, Section 7.136 Instead, a CAS is a

129 OPM v. Richmond, 496 U.S. 414, 424 (1990).
130 See Helvering v. Davis, 301 U.S. 619, 640–41 (1937) (holding that the Taxing and Spending Clause provides
Congress with the “discretion” to decide how to “spend money in aid of the ‘general welfare’”); see supra “General
Welfare Clause.”

131 See Daniel v. Cook Cnty., 833 F.3d 728, 733 (7th Cir. 2016) (“The individual rights in our Bill of Rights have long
been understood as negative rights, meaning that the Constitution protects individuals from some forms of government
intrusions upon their liberty, without imposing affirmative duties on governments to care for their citizens.”); see
generally
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989).
132 See, e.g., U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.”) (emphasis added).
133 See Nev. Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 727–28 (2003); Allen v. Cooper, 140 S. Ct. 994, 1004 (2020).
134 See COMM. ON RULES- CAS REQUIREMENT, supra note 93 (providing, as an example of a CAS, “This bill makes
specific changes to existing law in a manner that returns power to the States and to the people, in accordance with
Amendment X of the United States Constitution.”).
135 See id.
136 Zedner v. United States, 547 U.S. 489, 509–10 (2006) (Scalia, J., concurring in part and concurring in the judgment)
(“[T]he only language that constitutes ‘a Law’ within the meaning of the Bicameralism and Presentment Clause of
Article I, § 7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted
statute.”); see also Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005) (“As we have repeatedly held,
the authoritative statement is the statutory text, not the legislative history or any other extrinsic material.”), superseded
by statute,
Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4.
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type of legislative history material that describes the initial thoughts of an individual Member as
to Congress’s power to enact the bill.137 In this sense, one might view a CAS as akin to a
statement in the Congressional Record or a statement issued by the sponsor of a bill, which courts
have regarded as “weak” forms of legislative history when considering Congress’s intent in
passing a law.138
In practice, in the few court cases that cite to a law’s CAS, the underlying statement is mentioned
merely in passing and had no apparent effect on the decision, as courts have independently
evaluated the constitutionality of the legislation in question notwithstanding the existence of the
CAS.139 This practice is in keeping with broader principles of judicial supremacy discussed
above.140 A court that would conclude that a law is unconstitutional will not disregard that
conclusion merely because Congress believes the provision to be within its powers.141
Debate over the Rule
The seeming ease of compliance with House Rule XII, clause 7(c),142 and the tendency of some
statements to cite to general143 or arguably inapplicable provisions of the Constitution,144 may
lead some to wonder, “why have this Rule at all?”145 Critics have argued for its repeal, contending
that the rule is symbolic and has little impact on congressional debate or dialogue about
Congress’s authority under the Constitution.146 In addition, some have asserted that Congress

137 See Volokh, supra note 76, at 204 (“As currently structured, CASs are a form of legislative history, and a very weak
form at that.”); see also COMM. ON RULES- CAS REQUIREMENT, supra note 93 (“To the extent that a court looks at the
legislative history of an Act, the Constitutional Authority Statement would be part of that history.”).
138 Landgraf v. USI Film Prods., 511 U.S. 244, 262 n.15 (1994) (“[A] court would be well advised to take with a large
grain of salt floor debate and statements placed in the Congressional Record which purport to create an interpretation
for the legislation that is before us.”) (quoting 137 CONG. REC. S15325 (daily ed. Oct. 29, 1991) (statement of Sen.
Danforth)); see generally Zachary M. Ista, No Vacancy: Why Congress Can Regulate Senate Vacancy-Filling Elections
Without Amending (or Offending) the Constitution
, 61 AM. U. L. REV. 327, 360 (2011) (describing statements made by
a bill’s supporters during floor debate as one of the “least persuasive” forms of legislative history).
139 See, e.g., United States v. Bollinger, 798 F.3d 201, 207 (4th Cir. 2015) (independently evaluating the
constitutionality of a law after noting that the CAS for the law cited the Commerce Clause); United States v. Clark, 435
F.3d 1100, 1104 (9th Cir. 2006) (same).
140 See supra Role of Congress in Interpreting the Constitution.”
141 See City of Rome v. United States, 446 U.S. 156, 207 (1980) (Rehnquist, J., dissenting) ( “While the presumption of
constitutionality is due to any act of a coordinate branch of the Federal Government or of one of the States, it is this
Court which is ultimately responsible for deciding challenges to the exercise of power by those entities.”), superseded
by statute
, Voting Rights Amendments of 1982, § 2(b), 96 Stat. 131 (codified at 42 U.S.C. § 1973b(a)(1)), as
recognized in
Nw. Austin Mun. Util. Dist. No. One. v. Holder, 557 U.S. 193, 209–210 (2009).
142 See supra “Compliance with the CAS Rule.”
143 See supra Practices with Regard to Specificity of CASs.”
144 See supra Practices with Regard to Particular Clauses Cited in CASs.”
145 See COMM. ON RULES- CAS REQUIREMENT, supra note 93 (“Q. So why have this Rule at all? A. Just as a cost
estimate from the Congressional Budget Office informs the debate on a proposed bill, a statement outlining the power
under the Constitution that Congress has to enact a proposed bill will inform and provide the basis for debate. It also
demonstrates 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.”).
146 See Feingold, supra note 71, at 842 (“[C]ritics have suggest that this new House rule is symbolic at best and
meaningless at worst.... ”); see also Volokh, supra note 76, at 176 (“CASs are so unobjectionable that the main
argument against them is that they are useless.”); Norman Ornstein, as quoted in Abby Brownback & Louis Jacobson,
Lawmakers Abiding by New Constitutional Justification Rule, ST. PETERSBURG TIMES (Mar. 18, 2011),
http://www.politifact.com/trutho-meter/promises/gop-pledge-o-meter/promise/665/require-bills-to-include-a-clause-
citingits-autho/ (“Frankly, this is just symbolic, so I have no real feelings one way or the other.”).
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lacks the institutional capacity to interpret the Constitution,147 and the rule has prompted few
meaningful debates in Congress over the scope of Congress’s powers.148 Others contend that the
administrative costs of complying with the rule outweigh any benefits from the CAS
requirement.149
Others characterize the rule as an extension of the broader debate over Congress’s role in
interpreting the Constitution, providing a limited means by which Members of Congress may
expressly engage in constitutional interpretation.150 As one commentator notes, “[f]undamentally,
a [CAS] is a congressional interpretation of the Constitution,”151 and supporters of the rule see
several benefits to having the House of Representatives engage in this limited form of
constitutional interpretation. In their view, statements submitted under House Rule XII are a
“simple and straightforward self-monitoring mechanism” to ensure that Congress does not
“usurp” powers not granted to it in the Constitution.152 In this sense, proponents believe the CAS
rule serves to remind Members of the limits on Congress’s institutional power.153
Additionally, supporters of the CAS rule argue that it enhances constitutional dialogue outside of
the judiciary and promotes constitutional literacy within Congress by formally requiring
Members to engage in even limited constitutional interpretation when introducing legislation.154

147 See Feingold, supra note 71, at 851 (arguing that Members of Congress lack “the time and technical sophistication”
to understand the constitutional complexities of each bill, as well as the “political incentive to inquire into the
constitutionality of each piece of legislation.”); see also Abner Mikva, How Well Does Congress Support and Defend
the Constitution?
, 61 N.C. L. REV. 587, 587 (1983) (concluding that Congress has neither the institutional nor the
political capacity to engage in effective constitutional interpretation); but see Louis Fisher, Constitutional
Interpretation by Members of Congress
, 63 N.C. L. REV. 707, 708 (1985) (arguing that “Congress can perform an
essential, broad, and ongoing role in shaping the meaning of the Constitution.”).
148 See Stephen Dinan, Congress Has a Constitution Problem—Many Don’t Understand Document, WASH. TIMES (Jan.
14, 2013), http://www.washingtontimes.com/news/2013/jan/14/defenders-of-constitution-dont-always-use-it-for-l/
(“Many lawmakers ignored the rule, while others sliced and diced the clauses to justify what they were trying to do.
One thumbed his nose at the exercise altogether, saying it’s up to the courts, not Congress, to determine what is
constitutional. Most striking of all is how little the statements mattered in the debates on the bills. They were mentioned
just a handful of times on the floor, and didn’t foster the constitutional conversation that Republican lawmakers said
they wanted to spark.”).
149 See Pete Kasperowicz, Democrat: Citing Constitution Will Cost Taxpayers $570K, THE HILL (Jan. 10, 2011),
http://thehill.com/blogs/floor-action/house/136995-democrat-citing-constitutional-authority-in-bills-will-cost-you
(quoting one opponent of the rule who argued that the “requirement that lawmakers cite the Constitution in each bill
they introduce will cost $570,000 in additional printing costs.”); see also Feingold, supra note 71, at 844 (arguing that
requiring a CAS at the introduction of a bill that may not advance in the legislative process is “unnecessary and
bureaucratic.”).
150 See Feingold, supra note 71, at 842–43 (arguing that the CAS rule has “generated some interesting discourse in the
House on specific pieces of legislation.”).
151 See Volokh, supra note 76, at 178.
152 Id. at 176.
153 See COOPER & STEWART, supra note 110, at 3 (“Rule XII reminds Congress—even if subtly—that the Constitution
has meaning and should be respected ... it reinforces the principle that Congress has limited, enumerated powers
derived from a specific, foundational source.”).
154 See Marc Spindelman, House Rule XII: Congress and the Constitution, 72 OHIO ST. L.J. 1317, 1340 (2011)
(“Through engagement with the Constitution and constitutional deliberations of the sort that the new House Rule calls
for, members of the House may come to share, whatever their political affiliation, a political desire for full fluency and
literacy in constitutional deliberation and debate. Following and flowering from that desire could well come a desire to
change ... the wider political culture, which has for so long left the Constitution so firmly and finally in the hands of the
courts.”); see also COOPER & STEWART, supra note 110, at 3 (“[T]he Rule allows Congress to engage the other federal
branches in a conversation about the meaning of the laws and the Constitution itself.”); Spindelman, supra, at 1339
(arguing that the rule promotes Congress as “not only a co-equal branch of the federal government, but a co-equal
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Proponents of the rule have further contended that the rule could enhance the institutional
credibility and reputation of Congress by making clear to constituents that Members “take
seriously the constitutionality of their actions.”155 According to one former Member,
Congress’s reputational problems partially relate to a belief that Congress is not really
debating or deliberating in good faith but is simply retreating to partisan battle lines. This
concern has been exacerbated by Congress abdicating and leaving to the courts its historical
responsibility to consider constitutionality on its own. In this respect, the House Rule ... is
a foot in the door. Under the House Rule, all members of the House are required, essentially
for the first time, to take at least one aspect of their obligation to consider constitutionality
more seriously.156
CAS Rule Reform Proposals
Even among proponents of the rule, informal suggestions have been made to improve the
constitutional dialogue surrounding CASs. The primary proposals include enhancing the content
of the statements, better enforcement of the CAS rules, and changing other CAS procedures.
Enhancing the Content of CASs
Prompted by criticisms about how “thin many of [the CASs] are,”157 some have suggested that
the House rules be altered to require more formal and robust debate over the constitutionality of
proposed legislation. One proposal called for time to be set aside for formal debate on the House
floor about the constitutionality of legislation upon the motion of a single Member.158 Other
proposals focus on requiring more expansive statements that discuss the relationship between the
cited provision of the Constitution and the bill itself.159 In addition, others have advocated that the
CAS rule formally require that the statement discuss “[w]ith some depth” any “precedent
germane to the authority to enact the” legislation.160 Finally, several commentators have proposed
altering the rule so that Members must not only cite to the Constitution’s affirmative grants of
authority to Congress, but also discuss any potential limitations the Constitution may impose on
Congress’s power to legislate.161

interpreter of the federal Constitution.”).
155 See Feingold, supra note 71, at 872.
156 Id.
157 See Neil Siefring, Three Commitments Conservatives Should Get from a New Speaker, PJ MEDIA (Oct. 2, 2015),
https://pjmedia.com/blog/what-conservatives-should-ask-from-a-new-speaker/.
158 Id. Currently, Members may send a written request to the chair of the Rules Committee for debate on the
constitutionality of the proposed measure. If at least twenty-five Members sign the request, the chair will schedule up to
twenty minutes of floor debate, evenly divided between a member specified in the letter and the majority bill manager.
See Oleszek, supra note 98, at 4–5.
159 See COOPER & STEWART, supra note 110, at 21 (“Second, to increase transparency and accessibility, the Rule should
require that each Statement be accompanied by a short description of the bill’s purpose.”).
160 See Feingold, supra note 71, at 870.
161 See id. at 845 (“By merely requiring a statement describing the source of Congress’s constitutional authority but not
a limit to that authority, the House Rule addresses at best only half of the constitutional equation.”); see also Volokh,
supra note 76, at 216 (“The current CAS rule focuses Congress’s attention only on its grants of authority, not on other
clauses of the Constitution that set limits on the exercise of its powers. For a full debate of constitutionality, Congress
must consider both.”).
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Better Enforcement of the CAS Rule
Given the large number of statements that lack specificity or cite seemingly inapplicable clauses
of the Constitution, supporters of the rule have argued that Members must be held accountable for
ensuring that submitted CASs comply with both the letter and spirit of the requirement.162 One
early version of the current CAS rule proposed in the 111th Congress would have deemed general
citations to the “common defense clause, the general welfare clause, or the necessary and proper
clause” insufficient to satisfy House Rule XII, clause 7(c).163 In addition, this proposal would
have allowed a Member to initiate a point of order challenging the adequacy of a CAS, thereby
subjecting the measure to a short debate that would resolve whether the submitted statement
complied with House Rule XII.164 Others have urged that the Clerk of the House or a designee be
empowered to “evaluate the content” of a submitted statement formally and “add a note
indicating that the Statement submitted does not properly satisfy the Rule’s specificity
requirement.”165 Under this proposal, any bill with such a notation could be “subject to a special
privileged motion by a Member to recommit the bill for failure to follow the Rule.”166
Changing Other CAS Procedures
Currently, the CAS focuses on a single moment: the initial introduction of a bill or joint
resolution. Viewing this focus as a shortcoming, several proponents of the CAS rule have argued
that the rule should apply during all stages of the legislative process, including during committee
deliberations, so that the constitutionality of a bill or resolution is subject to broader
consideration.167 Relatedly, because the CAS rule applies only at the beginning of the legislative
process, the only Member who must formally assess Congress’s authority to enact the legislation
in question is the Member who introduces the legislation.168 In order to ensure that Members, who
must ordinarily decide how to vote on another Member’s bill, consider the constitutional
implications of the legislation in question, some have suggested that the House Rule “explicitly
acknowledge” the independent “obligation” of Members to be “mindful of any constitutional
objections” regarding the bill that is the subject of a vote.169 At least one commentator has
considered (but ultimately does not recommend) a change to the House Rule that would make the
CAS part of the text of a bill, as opposed to a statement attached to the bill.170 Such an approach
could, at least in theory, formalize and elevate the role of the CAS because when a bill that

162 See Volokh, supra note 76, at 199 (“Some critics might say that citing these very general, open-ended clauses
defeats the purpose of the rule.”).
163 See H.R. Res. 1754, 111th Cong. (2010).
164 Id.
165 See COOPER & STEWART, supra note 110, at 20.
166 Id. at 21.
167 Id. (“Rule XII should ensure that at each step in the legislative labyrinth, from submission to the floor, the bill and
its Authority Statement are attached thereto and immediately available to Members for their consideration and
debate.”); see also Feingold, supra note 71, at 864–65 (noting that one “area[] that need[s] expansion and
improvement” with regard to the CAS rule is that the rule “requires a CAS only at the time the bill is introduced” and
has “no rules regarding proposed amendments that may be attached to any legislation.”); Volokh, supra note 76, at 215
(“CASs should be required both at introduction and in the committee report.”) (emphasis in original).
168 See Feingold, supra note 71, at 865.
169 Id.; see also Volokh, supra note 76, at 218 (“Changes could be made to the rule that would turn CASs into
statements of the entire House of Representatives or the entire Congress.”).
170 See Volokh, supra note 76, at 220. Notably, Professor Volokh concludes that the “costs of putting CASs in statutory
text,” such as the risks of the statement being watered down, “are substantial, and probably outweigh the benefits.” Id.
at 226.
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contains a CAS in its text is put to a vote, multiple Members could potentially voice their
agreement or disagreement with the bill’s language assessing Congress’s power to enact the
underlying legislation.171
Each of the proposed modifications to the CAS rule could raise new concerns, however. For
example, if House Rule XII were modified to require more robust discussions of the
constitutionality of a given piece of legislation throughout the legislative process, such a
modification could amplify the criticisms that the CAS rule requires considerable resources to
ensure compliance.172 Moreover, if the rule were modified to require that CASs include additional
content, without any changes to its current enforcement regime, the additional requirements
could, in the view of at least one commentator, be ignored.173
Potential Considerations for Drafting CASs
To aid drafters of CASs, Table 2 provides a list of suggested citations that could potentially be
submitted in a CAS pursuant to House Rule XII, clause 7(c), for various types of commonly
introduced legislation. In addition, a CAS might cite the Necessary and Proper Clause along with
one or more enumerated powers below as constitutional support for the proposed legislation.174

171 See id. at 220. Nonetheless, even if placing a CAS in the legislative text would satisfy the Presentment Clause of the
Constitution, it is unclear what effect the statement would have with regard to constitutional interpretation by the
courts. See supra note 141 and accompanying text.
172 See supra “Compliance with the CAS Rule,Practices with Regard to Specificity of CASs,Practices with
Regard to Particular Clauses Cited in CASs,
” notes 145–149 and accompanying text.
173 See Feingold, supra note 71, at 871 (noting, but ultimately rejecting, the argument that “members of the Congress
may still not take seriously their obligations to consider constitutionality”). Ultimately, Senator Feingold suggests that
“members [would] take [their] obligations seriously” even if there were no enforcement mechanism for a more robust
CAS rule. Id. at 872 (“Nevertheless, anecdotal evidence suggests that, at least in the case of similar rules governing the
behavior of senators, many members take such obligations seriously.”).
174 See supra “The Necessary and Proper Clause.”
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Table 2. Suggested CAS Citations for Commonly Introduced Legislation
Subject Matter of
Legislation
Suggested Citation
Appropriations (i.e., legislation
Article I, Section 8, clause 1, provides Congress with the power to “lay
that sets aside a sum of money
and col ect Taxes, Duties, Imposts and Excises” in order to “provide for the . .
for a specific purpose)
general Welfare of the United States.”
Note that Article I, Section 9, clause 7, prohibits money from being drawn
from the Treasury absent an appropriation made by law.
Appropriations Related to the
Article I, Section 8, clause 1, provides Congress with the power to “lay
Military
and col ect Taxes, Duties, Imposts and Excises” in order to “provide for the
common Defence . . of the United States.”
Article I, Section 8, clause 12, provides Congress with the power to raise
and support armies.
Article I, Section 8, clause 13, provides Congress with the power to
“provide and maintain” a navy.
Appropriations that Place
Article I, Section 8, clause 1, provides Congress with the power to “lay
Conditions on an Expenditure
and col ect Taxes, Duties, Imposts and Excises” in order to “provide for the . .
(e.g., a grant to the states)
general Welfare of the United States.”
Article I, Section 8, clause 18, allows Congress to make all laws “which
shall be necessary and proper for carrying into execution” any of Congress’s
enumerated powers.
According to the Supreme Court, that authority includes the ability for
Congress to “attach conditions on the receipt of federal funds.” See South
Dakota v. Dole, 483 U.S. 203, 207 (1987).
Awards—Military Awards (e.g.,
Article I, Section 8, clause 14, provides Congress with the power to make
Congressional Medal of Honor)
rules for the government and regulation of the land and naval forces.
Awards—Non-Military Awards
Article I, Section 8, clause 5, empowers Congress to coin money. The
(e.g., Congressional Gold Medal)
U.S. Treasury through the United States Mint has historically exercised its
power over coinage to strike national medals.
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Subject Matter of
Legislation
Suggested Citation
Civil Rights Legislation
A variety of constitutional provisions have been utilized with regard to civil
rights legislation, depending on the nature of the legislation, including the
fol owing:
Article I, Section 8, clause 3, provides Congress with the power to
“regulate commerce with foreign nations, and among the several states, and
with the Indian tribes.” The Supreme Court has held that the “power of
Congress to promote interstate commerce also includes the power to
regulate ... local activities in both the States of origin and destination, which
might have a substantial and harmful effect upon that commerce,” including
local discriminatory activities that have a “disruptive effect ... on commercial
intercourse.” See Heart of Atlanta Motel v. United States, 379 U.S. 241, 257–
58 (1964).
Thirteenth Amendment, Section 2, provides Congress the power “to
enforce” the substantive guarantees of the Amendment, which prohibits
slavery and involuntary servitude, by enacting “appropriate legislation.” The
Supreme Court has recognized that the Thirteenth Amendment provides
Congress with the authority to pass laws for abolishing all “badges or
incidents” of slavery or servitude. See Jones v. Alfred H. Mayer Co., 392 U.S.
409, 437–44 (1968).
Fourteenth Amendment, Section 5, provides Congress the power “to
enforce” the substantive guarantees of the amendment, including the Due
Process and Equal Protection Clauses, by enacting “appropriate legislation.”
The Supreme Court has recognized that, under Section 5, Congress may
proscribe unconstitutional conduct by states by enacting legislation that
remedies and deters violations of rights guaranteed under the Fourteenth
Amendment. See Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 728
(2003).
Fifteenth Amendment, Section 2, provides Congress the power to
enforce the substantive guarantees of the amendment, namely, that the right
to vote shall not be denied or abridged on account of race or color, by
enacting “appropriate legislation.” The Supreme Court has recognized that
“Congress has ful remedial powers [under the Fifteenth Amendment] to
effectuate the constitutional prohibition against racial discrimination in voting.”
See South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966).
Constitutional Amendment
Article V authorizes Congress, whenever two-thirds of both houses “deem it
necessary,” to propose amendments to the Constitution.
Courts—Regulation of the
Article I, Section 8, clause 9, provides Congress with the power to
Jurisdiction of Federal Courts
constitute “Tribunals inferior to the Supreme Court.”
Article III, Section 2, allows Congress to make “Exceptions” to the
Supreme Court’s appellate jurisdiction.
Courts—Procedures, Practices,
Article III, Section 1, vests the judicial power of the United States in the
and Rules of Federal Courts
Supreme Court and any inferior courts Congress establishes.
Article I, Section 8, clause 18, allows Congress to make all laws “which
shall be necessary and proper for carrying into execution” any “other” powers
vested by the Constitution in the Government of the United States.
According to the Supreme Court, the Necessary and Proper Clause gives
Congress the “power to make laws for carrying into execution all the
judgments which the judicial department has power to pronounce” (Wayman
v. Southard, 23 U.S. (10 Wheat.) 1, 22 (1825)), and, thereby, Congress has
“undoubted power to regulate the practice and procedure of federal courts.”
See Sibbach v. Wilson & Co., 312 U.S. 1, 9 (1941).
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Subject Matter of
Legislation
Suggested Citation
Economic Regulations (e.g.,
Article I, Section 8, clause 3, provides Congress with the power to
regulations regarding a particular “regulate commerce with foreign nations, and among the several states, and
business; regulations pertaining
with the Indian tribes.”
to labor standards)
According to the Supreme Court, the Commerce Clause authorizes Congress
to regulate the use of the channels of interstate commerce; the
instrumentalities of interstate commerce, or persons or things in interstate
commerce; and those activities having a substantial relation to or affecting
interstate commerce. See United States v. Lopez, 514 U.S. 549, 558–59
(1995).
Election Regulations
Article I, Section 4, clause 1, allows states to prescribe the “Time, Places
and Manner of holding Elections for Senators and Representatives,” but allows
Congress “at any time” to “make or alter such regulations.”
Federal Land Regulation (e.g.,
Article IV, Section 3, clause 2, provides Congress with the power to
selling federal lands; creating
“dispose of and make all needful Rules and Regulations respecting the
rules for national parks)
Territory and other Property belonging to the United States.”
The Supreme Court has described this power to be “without limitations,”
holding that “Congress may constitutionally limit the disposition of the public
domain to a manner consistent with its views of public policy.” See United
States v. San Francisco, 310 U.S. 16, 29 (1940).
Immigration—Naturalization
Article I, Section 8, clause 4, provides Congress with the power to
(i.e., granting of citizenship to a
establish a “uniform Rule of Naturalization.”
foreign-born person)
The Supreme Court has recognized that the power to establish a uniform rule
of naturalization can, in part, be more broadly viewed to provide Congress
power “over the subject of immigration and the status of aliens.” See Arizona
v. United States, 567 U.S. 387, 394 (2012).
Immigration—Outside of
According to the Supreme Court, the formulation of immigration policy is
Naturalization (e.g., granting of
“entrusted exclusively to Congress.” See Galvan v. Press, 347 U.S. 522, 531
temporary visas to
(1954); see also Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has
nonimmigrants, regulating the
repeatedly emphasized that ‘over no conceivable subject is the legislative
entry and deportation of aliens)
power of Congress more complete than it is over’ the admission of aliens.”).
Notwithstanding such language, the Constitution does not directly address the
sources of federal power to regulate which non-U.S. nationals (aliens) may
enter and remain in the United States or to establish the conditions of their
continued presence within the country. The Supreme Court has often
described Congress’s power over immigration as flowing, at least in part, from
the federal government’s “inherent power as sovereign.” Arizona, 567 U.S. at
396. In addition, several of the enumerated powers in the Constitution, have
been construed as authorizing immigration legislation, including the fol owing:
Article I, Section 8, clause 3, provides Congress with the power to
“regulate commerce with foreign nations, and among the several states, and
with the Indian tribes.” The Supreme Court has held that Congress’s power
to regulate foreign commerce includes the power to regulate the entry of
persons into the country. See Henderson v. Mayor of New York, 92 U.S. 259,
270–71(1876).
Article I, Section 8, clauses 11-16, which col ectively provide Congress
with various authorities related to foreign affairs, have been cited as providing
support for congressional regulation of immigration. See Tol v. Moreno, 458
U.S. 1, 10 (1982).
Internal Rules of the House
Article I, Section 5, clause 2, provides that each house of Congress “may
determine the Rules of its Proceedings.”
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Subject Matter of
Legislation
Suggested Citation
Intellectual Property—Patents
Article I, Section 8, clause 8, provides Congress with the power to
and Copyright
promote the “Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.”
Military Rules and Regulations
Article I, Section 8, clause 14, provides Congress with the power to make
(e.g., amending the Uniform
rules for the government and regulation of the land and naval forces.
Code of Military Justice)
Post Offices (e.g., naming post
Article I, Section 8, clause 7, provides Congress with the power to
offices; creating honorary
establish post offices and post roads.
stamps)
Taxes, Duties, Imposts, and
Article I, Section 8, clause 1, provides Congress with the power to “lay
Excises
and col ect Taxes, Duties, Imposts and Excises.”
Taxes (Income)
Sixteenth Amendment provides Congress with the power to “lay and
col ect taxes on incomes.”
Source: Congressional Research Service.
The Library of Congress, through the Congressional Research Service, regularly publishes and
updates The Constitution of the United States of America: Analysis and Interpretation (popularly
known as the Constitution Annotated or CONAN). CONAN contains an in-depth, accessible, and
objective record of how each provision in the Constitution has been interpreted by the Supreme
Court and other entities.175 More information about any of the provisions in Table 2, including its
history of interpretation by the Supreme Court, is available in CONAN.
Given the broader trends with regard to CAS practices discussed above,176 it may also be helpful
to consider the following questions before submitting a CAS:
Does the CAS cite to a specific clause of the Constitution? While some CASs cite to an entire
article or section of the Constitution, such as “Article 1” or “Article I, Section 8,” the prevailing
customary practice has been to cite to a specific clause of the Constitution, such as the Commerce
Clause found in Article I, Section 8, clause 3. To the extent a Member wishes to cite to a specific
clause in a CAS, Table 2 may be a helpful resource to consult. A CAS may include more than one
of these sources of constitutional authority for a bill, either because the bill as a whole is
supported by more than one constitutional provision or because different parts of the bill require
Congress to exercise different authorities.
Does the CAS cite to a clause that affirmatively empowers Congress to take an action?
Article I, Section 9, of the Constitution (which contains limitations on the powers of the federal
government) and the first ten constitutional amendments (also known as the Bill of Rights) are
commonly understood as restrictions on the powers of the federal government rather than
affirmative grants of power. These provisions might help explain a bill’s purpose (for example,
supporting the freedom of speech) but alone are unlikely to establish Congress’s authority to
enact legislation. In contrast, Article I, Section 8, contains the majority of commonly cited clauses
that provide Congress the affirmative power to legislate with respect to various subjects.
Does the CAS cite to a clause that relates to and authorizes the underlying legislation? A
Member may wish to cite to a constitutional provision that, based on either historical

175 See Cong. Rsch. Serv., CONSTITUTION ANNOTATED, https://www.congress.gov/constitution-annotated/ (last visited
Feb. 22, 2023).
176 See supra “House Rule XII, Clause 7(c), and Constitutional Authority Statements.”
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understandings or judicial interpretations, has some relationship with the subject matter of the
legislation. Citations to constitutional provisions such as the General Welfare Clause and the
Military Regulation Clause, for example, may not provide the necessary authority to support all
the provisions of a multifaceted bill. Attorneys in CRS’s American Law Division can provide
advice with regard to specific CAS citations for proposed legislation.
Does the CAS cite only to the Necessary and Proper Clause? To the extent that a Member
wishes to cite exclusively to the Necessary and Proper Clause (Article I, Section 8, clause 18), it
may be helpful to remember that courts have understood the Necessary and Proper Clause to
supplement Congress’s enumerated powers under the Constitution but have not construed the
clause as an independent source of power. Importantly, the Necessary and Proper Clause
authorizes Congress not only to take action to assist in the execution of its legislative powers but
also to provide support for the execution of “all other Powers vested by this Constitution in the
Government of the United States,” including to assist the executive and judicial branches in
carrying out their constitutional functions. As noted above, the Necessary and Proper Clause
might be identified in a CAS in combination with an enumerated power identified in Table 2 as
support for a piece of legislation.
Conclusion
A House Rule XII, clause 7(c), statement regarding the constitutionality of legislation is required
only when a Member of the House introduces legislation. The CAS, by design, is just the starting
point for constitutional dialogue respecting a bill or joint resolution. Nothing in the rule prohibits
further discussions about the constitutional issues that a piece of legislation may implicate. While
the customary practice with regard to CASs, to date, has been to provide a short citation to the
provision in the Constitution that affirmatively grants Congress the authority to enact the
underlying legislation,177 it is not unprecedented for Members to cite sources beyond the text of
the Constitution, such as Supreme Court case law, primary source materials on the Constitution,
or a constitutional law treatise.178 Other CASs have gone beyond citing to the affirmative powers
that the Constitution provides Congress and have discussed potential restraints the Constitution
imposes that may prohibit the enactment of the underlying legislation.179
Outside of a CAS, Members can request a formal floor debate respecting the constitutionality of
pending legislation,180 and constitutional debate and dialogue can occur in a host of other
contexts, including voting to enact legislation, committee hearings, committee reports, and more
“informal practices, norms, and traditions.”181 Also, Members of Congress have a variety of
resources available to help inform their participation in constitutional debate, including “expert
witnesses at hearings, their legally trained staff, [and] constitutional experts at the [CRS].”182 In

177 See supra note 104.
178 See COOPER & STEWART, supra note 110, at 9–10 (providing examples of more detailed CASs); see also Volokh,
supra note 76, at 198 (noting that a “handful of CASs engage in a thorough and highly detailed explanation of the
constitutional ramifications of the proposed legislation,” such as including “several paragraphs of discussion about the
Federalist Papers and Supreme Court doctrine as well as three particular clauses of the Constitution.”).
179 See COOPER AND STEWART, supra note 110, at 11 (noting an example of a CAS that discussed why the underlying
legislation was “consistent with” various constitutional provisions).
180 See supra note 158.
181 See Michael J. Gerhardt, Non-Judicial Precedent, 61 VAND. L. REV. 713, 738–39 (2008) (chronicling the various
contexts in which Congress interprets the Constitution).
182 See Volokh, supra note 76, at 189; see generally Fisher, supra note 147, at 729–30 (discussing Congress’s various
“sources of legal assistance” to aid in constitutional interpretation).
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particular, CRS’s American Law Division regularly provides legal advice to Members and their
staff on constitutional questions regarding pending legislation, whether by providing suggestions
for a CAS or by formally rendering an opinion on the constitutionality of pending legislation.183
Using these resources, Members and their staff have the capability to meaningfully participate in
ongoing debates over the interpretation of the Constitution, beginning with the CAS.

Author Information

Whitney K. Novak

Legislative Attorney


Acknowledgments
Former Legislative Attorney and Section Research Manager Andrew Nolan authored prior
versions of this report. Inquiries on this topic can be submitted to the listed author.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.


183 See Fisher, supra note 147, at 730 (“Committee staff can analyze constitutional questions and call on the American
Law Division of the Library of Congress.... ”).
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