Professor Hanah Metchis Volokh’s paper on this topic is well worth reading. My favorite fact: In response to a rule requiring House members to file a Congressional Authority Statement (CAS) explaining “the power or powers granted to Congress in the Constitution to enact the bill”, over 10% of the statements cite, without further elaboration or specificity, “Article I”, which of course creates and describes Congress and its powers and procedures, “Article I, Section 1,” vesting the federal legislative power in Congress, or “Article I, Section 8”, which lists all of the powers of Congress, begging the question “which one did you mean?” Quite rightly, Professor Volokh argues that a CAS, repreenting, as it does, the views of a single legislator (and not being part of the bill itself), should have little or no weight as legislative history. Therefore, even if a CAS fails to identify the right power, if the law is in fact within the power of Congress, the mistaken statement should not invalidate the law. The paper notes that the CAS requirement post-dates the health care law, so there is no CAS on that.
Posted by Jack Chin on April 27, 2012 at 04:39 PM