Why Constitutional Grounding Matters

The American constitutional order asks something simple and profound of its lawmakers: tether every exercise of federal power to an enumerated grant in the Constitution. That tether serves three indispensable purposes. First, it gives citizens and their representatives a shared starting point—text and history—when they argue about what Congress may do. Second, it gives courts a clean line of sight when they must decide whether a statute stays within those bounds. And third, it protects the federal republic the Constitution creates, preserving a meaningful division of power between Washington and the states.

James Madison captured the logic crisply: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.” That’s the federalist bargain the country was sold; fidelity to it is not optional if we mean to keep the system we inherited. (Founders Online)

Alexander Hamilton, in turn, explained how the judiciary polices those limits: “The courts of justice… [have] the duty… to declare all acts contrary to the manifest tenor of the Constitution void.” Judicial review only works, however, when Congress leaves a discernible constitutional trail—so judges, litigants, and the public can test a statute against the relevant grant of power. (Founders Online)

That’s the spirit behind the House rule requiring a Constitutional Authority Statement (CAS) to accompany every bill or joint resolution at introduction. The rule says the sponsor must cite “as specifically as practicable the power or powers” in the Constitution that authorize the bill. In theory, this is a modest but healthy discipline: say exactly which clause lets you do this, so everyone can evaluate the match between means and power. In practice, though, Congress is largely papering over the requirement—and the official guidance and enforcement regime make it far too easy to do so. (Congress.gov)

The Rule and the Loophole

Let’s start with the rule itself. House Rule XII, clause 7(c) requires a CAS at the moment of introduction. The statement is published in the Congressional Record and on Congress.gov. Crucially, it is not part of the bill’s text, has limited legal significance, and is checked only for presence, not adequacy. The House Rules Committee’s materials describe the filing, and CRS’s quick guide lays out the mechanics and limits. That’s an invitation to boilerplate. (Rules Committee, Congress.gov)

CRS guidance does nudge drafters toward specificity and recognizes that the Necessary and Proper Clause (Article I, §8, cl. 18) is not an independent source of power—it supplements other enumerated powers. In other words, you shouldn’t just say “Clause 18” and call it a day; you should pair it with the actual enumerated power the bill is implementing (Commerce, Taxing and Spending, Naturalization, etc.). Yet in everyday practice, many filings do exactly what the rule discourages: they rely on generic, catch-all citations (e.g., “Article I, Section 8” with no clause) or on Clause 18 alone. (Congress.gov)

What the Necessary and Proper Clause actually does

Text and function. Article I, §8, Clause 18 empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”—that is, the specific powers listed in §8 (and other powers vested elsewhere in the Constitution). It authorizes means to implement enumerated ends; it is implementational, not independent. (Congress.gov)
The classic standard. In McCulloch v. Maryland (1819), Chief Justice Marshall set the enduring test: “Let the end be legitimate… and all means which are appropriate… not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” The clause gives Congress leeway to choose reasonable tools to execute its granted powers—nothing more. (Legal Information Institute)
Modern applications and limits. The Court has used the clause to uphold laws closely tied to other federal powers (e.g., United States v. Comstock upholding federal civil commitment tied to the federal criminal system), but it has also rejected attempts to use the clause to create new regulatory ends Congress wasn’t otherwise given (e.g., NFIB v. Sebelius rejecting N&P as support for compelling individuals to buy insurance). In short, N&P is a means-clause, not a blank check. (Justia Law, Congress.gov)

If you doubt how common the generic approach is, open any daily Congressional Record page listing newly introduced House bills. On August 8, 2025, the House section (page H3688) prints a string of CAS entries where sponsors cite just “Article I, Section 8” or “Article I, Section 8, Clause 18”—no tailored tie to the bill’s subject. That isn’t an outlier; it’s representative. (Congress.gov) The CRS overview also explains why the rule produces so much boilerplate: it adopts a subjective standard (each Member selects a basis they deem appropriate) and the House’s enforcement is procedural, not substantive. An early discussion contemplated stricter limits on generic citations; that never made it into the standing rule. Result: formal compliance with minimal constitutional illumination. (Congress.gov)

What the Dataset Shows

Using a dataset of Constitutional Authority Statements drawn from the last three Congresses (117th–119th), we compared whether the CAS cited a specific enumerated power (e.g., “Article I, Section 8, Clause 3 (Commerce)”) versus a generic catch-all (e.g., “Article I, Section 8” with no clause, or Clause 18 alone). We also tagged the sponsoring party for each bill. Because the CAS is filed at introduction, the sample is anchored to introduction dates and the corresponding Record entries.

Two findings jump out.

1. Congress—across the board—overuses generic citations. In the aggregate sample, a majority of CAS entries fell back on generic authority at least once, and a non-trivial share relied solely on Necessary and Proper. (As noted above, N&P is a supplement to enumerated powers, not a stand-alone font of authority.) (Congress.gov)
2. Right-leaning lawmakers are the surprising leading offenders. In this dataset, Republican sponsors used generic citations more often than Democratic sponsors—a jarring result for anyone who prizes originalism and constitutional craftsmanship and expects the self-styled party of enumerated powers to model best practices. (Data limitations below.)

None of this implies Democrats are exemplary; many Democratic CAS entries are generic, too. But across these three Congresses, the sample shows Republicans resorting to generic “authority” more frequently. That’s not just ironic; it undercuts the constitutional rhetoric many on the right profess.

Limitations. This is a subset, not a universe of all House bills. It covers parts of the 117th–119th Congresses and focuses on bills for which a CAS appeared on the Record pages we collected. It does not adjust for later amendments (CAS is given at introduction and may not be updated even if scope changes), and it doesn’t rate the substantive fit between a citation and a bill’s content. Still, the pattern of generic citations is robust across the sample and consistent with what anyone can see by skimming the daily filings. (Congress.gov)

How We Got Here: A Rule Built to Be Evaded

The CAS rule tries to promote constitutional dialogue, but CRS is upfront about its limited legal effect: a CAS “accompanies” a bill; it is not law and does not alter a court’s constitutional review. If you want careful constitutional drafting, you need a rule that demands more than a perfunctory cite. As long as adequacy isn’t enforced, the path of least resistance—“Article I, Section 8.” See you in court—will dominate. (Congress.gov)

It also matters that the House’s own resources make generic citing easy. The Rules Committee page explains the filing but does not require a clause-specific, bill-specific justification; likewise, public CRS primers explain the rule but emphasize Member discretion. The predictable result is a culture of compliance that prizes form (“insert a citation here”) over fit (tie each title to its proper clause). (Rules Committee, Congress.gov)

None of this is theoretical. Even marquee legislation relied on generic authority in official paperwork. The House Budget Committee’s report on H.R. 1, the One Big Beautiful Bill Act cited Article I, Section 8, Clause 18 as the committee’s constitutional authority—without specifying which “foregoing powers” each title executes across the bill’s sprawling scope. That’s thin gruel for a measure of that magnitude. (GovInfo)

Why This Matters for Courts—and the Republic

A CAS that cleanly ties a bill to a specific enumerated power (or powers) helps everyone downstream. Courts do not (and should not) treat a CAS as binding law, but well-specified CAS entries sharpen the legal questions and frame the constitutional stakes. They illuminate the theory under which Congress thinks it is acting. That in turn helps judges apply Hamilton’s admonition—void acts “contrary to the manifest tenor of the Constitution”—to a clearer record of congressional intent. (Founders Online)

More broadly, a culture of precise constitutional grounding buttresses federalism. Madison’s “few and defined” federal powers are meaningful only if Congress identifies them—with specificity—when it acts. When the CAS becomes a rote incantation of “Article I, §8” or “Clause 18,” the default drifts toward plenary national power. That drift is the opposite of what the Founders promised and what citizens in the states were told to expect. (Founders Online)

The Necessary and Proper Clause exemplifies the point. As the Constitution Annotated makes clear, Clause 18 implements other powers; it does not turn Congress into a government of general competence. Treating it as a catch-all isn’t originalism; it’s convenience. (Congress.gov)

The Shock on the Right

One could be forgiven for assuming Democrats would be the bigger offenders, given progressive comfort with a more expansive national state. But in this dataset Republicans leaned on generic citations even more often. For a movement that speaks the language of constitutionalism and enumerated powers, this is a self-inflicted wound. It reinforces the suspicion that “constitutional conservative” is a bumper sticker for campaigns, not a standard for governing.

The irony is especially sharp when the flagship “One Big Beautiful Bill Act” is a touchstone. However one feels about its policy contents, the constitutional question remains: Which specific grants of power authorize it? That’s the Madisonian test. When Members reach reflexively for “Clause 18” or “Article I, §8” without more, they shrink the space for serious constitutional argument and make judicial review harder—not easier—for measures they favor. (CRS’s quick guide is explicit that N&P should be paired with an enumerated power, not used as a stand-alone crutch.) (Congress.gov)

A Better Way Forward

If the House truly wants the CAS to matter, it should fix three things:

1. Require enumerated precision. Make it out of order to file a CAS that cites only Article I, §8 generally or N&P alone. Require at least one specific clause (e.g., Commerce, Taxing and Spending, Naturalization, Postal), with a sentence explaining the connection. CRS and the Constitution Annotated already supply suggested pairings for common bill types; make those the baseline. (Congress.gov)
2. Committee-level CAS with a paragraph of reasoning. When a committee reports a bill, require a short paragraph for each title explaining which clause(s) authorize it, and how. This isn’t court-grade briefing—just a nudge toward specificity.
3. Update CAS upon major amendment. If bill scope changes, require an updated CAS on ordering the bill to the floor. Judicial review evaluates the law as enacted; Congress should identify the power as enacted.

These modest changes won’t bind courts—and shouldn’t—but they will discipline drafting, sharpen debate, and treat constitutional limits as a live constraint rather than a ritual incantation.

The Stakes

The Founders were not naïfs. They expected ambition to check ambition, which only works if each branch takes its constitutional assignment seriously. A House rule that invites evasion is an own goal. As Hamilton warned, if courts cannot measure statutes against the Constitution’s “manifest tenor,” then “all the reservations of particular rights or privileges would amount to nothing.” CAS precision helps preserve that measuring stick. (Founders Online)

Madison’s federalism—few and defined national powers—was the sales pitch for ratification and remains the best guardrail against the excesses of centralized government. When Congress routinely fails to state which “few and defined” powers authorize its work, it blurs the lines that protect the republic. At minimum, lawmakers who campaign as originalists should be the best at drawing those lines, not among the worst. (Founders Online)