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New rules

It’s too early to draw many conclusions about Republicans’ experiment with constitutional authority statements, though the early data suggest mixed results.

The most popular authority members cited — on nearly a third of all bills submitted so far — is Article I, Section 8, Clause 1, which gives Congress general legislative powers and charges it with providing for the “general welfare.” The second most commonly cited authority is the so-called “interstate commerce” clause in Article I, Section 8, Clause 3, which was cited on nearly a quarter of all bills.

The most prolific lawmaker so far, Rep. Sheila Jackson Lee, Texas Democrat, has introduced 27 bills, citing Clause 1 powers 11 times, Clause 3 powers seven times, and Article I, Section 8, Clause 18 powers — the “necessary and proper” clause — five times.

Four lawmakers have proposed repealing laws, saying they are unconstitutional because they infringe on the 10th Amendment’s reservation of most powers to the states.

The rules require lawmakers to identify “as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution,” and some are taking that more seriously than others.

Rep. Mike Rogers, Michigan Republican, filed a two-paragraph explanation justifying Congress‘ authority to extend the post-9/11 Patriot Act, including the power to “provide for the common defense” found in Article I, Section 8, Clause 1, and the necessary and proper clause. And Rep. Todd Akin, Missouri Republican, cited specific Supreme Court case law that has interpreted Congress‘ rights to act on setting federal courts’ jurisdiction.

But other lawmakers aren’t putting in the same kind of effort.

Two Democrats, Rep. Rush D. Holt of New Jersey and Rep. Lynn Woolsey of California, submitted a total of eight bills pointing only to Article I of the Constitution in general, which includes all the sections on the makeup and powers of the legislative branch.

Mrs. Woolsey’s bills include measures to increase workplace safety and whistleblower protections and to establish a “public option” government-run health care plan. Mr. Holt’s bills, meanwhile, deal with the tax code, including income taxes, where Congress‘ authority stems from the 16th Amendment — though Mr. Holt only cited Article I authority.

Their offices didn’t respond to several messages left seeking comment on their abbreviated statements.

Still to be seen is how the statements will affect the actual debate over bills in committees and on the House floor.

Test case

Mr. Spalding, who is director of the Heritage Foundation’s Center for American Studies, said one test for the new House GOP majority will come when they try to make incremental changes in areas where many of them think the federal government has overstepped its role — such as education. In those cases, the GOP is more likely to try to reform, rather than replace existing policy, which will force them to have to justify the government’s role in the first place.

“The real challenge will come with good reforms, which significantly move in the direction of more constitutional responsibility, yet still remain constitutionally dubious — how are they going to write the citation for that?” he said.

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