•  
  •  
 

Abstract

The structure of this Article is as follows. Part I discusses Congress’s authority and institutional capacity to interpret the Constitution. Part II situates constitutional authority statements within existing debates over constitutional interpretation outside the courts. Congress must necessarily make decisions about constitutional meaning when it legislates. Most scholars believe Congress has at least some independent authority to interpret the Constitution, while others think Congress should follow Supreme Court doctrine even when Congress disagrees. Regardless of which theory is correct, Congress needs to consider constitutionality (however defined) when legislating. CASs increase Congress’s capacity to do so by creating an institutional mechanism that prioritizes constitutional analysis.

Part III examines issues involving the substantive content of constitutional authority statements. The rule requires “specific” statements, but does not define “specific.” Nor is it clear how a Representative can cite authority that flows from the structure of the Constitution rather than from a textual provision. Additionally, this section examines enforcement of the rule to ensure that members follow its requirements.

Part IV turns to the question of judicial review. Now that Congress—at least, a portion of Congress—takes an official position about the constitutional basis of every single law it enacts, how should the courts treat this information? Should the courts give some amount of deference to Congress’s constitutional statements? More importantly, should courts consider only Congress’s cited constitutional authority, or may courts find an independent justification for upholding a law regardless of what the CAS has cited? This Article argues that CASs are a very weak form of legislative history, are for the most part not written with judicial interpretation in mind, and are therefore not particularly useful to courts. Judges should not, and probably will not, strike down statutes because of a CASs mistaken constitutional interpretations.

Part V examines several ways that Congress can, if it desires, strengthen the CAS requirement. Some of these reforms are aimed at making CASs better at what they currently do: enhancing congressional deliberation. Others attempt to make CASs into more authoritative statements that could be used in court interpretations. Both the House of Representatives and the Senate should evaluate the costs and benefits of a variety of ways of implementing a CAS rule.

Download

Share

COinS