Enumerated Powers Act Won't Become Law, Despite Rand Paul's Best Efforts

A relatively short, straightforward bill has been regularly pushed through Congress almost every session since the 104th meeting of Congress in 2007, gaining some notable support, but never being passed into law. Senators Coburn (R-Okla.) and Paul (R-Ky.) have reintroduced this bill in their Enumerated Powers Act of 2013, calling upon the Congress to develop new regulations through which every Congressional bill, resolution, or amendment must "contain a concise explanation of the specific authority in the Constitution that is the basis for its enactment."

The concept is, in theory, a simple one. In the American constitutional system, the federal government's powers are limited by their enumeration in the Constitution (affirmed in the Tenth Amendment, which states "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.") Supporters claim the proposed act would help ensure good governance by "shifting debate to fundamental questions of the rule of law" when legislation is passed.

The fear remains, however, that the proposed requirements will be politically targeted to make it virtually impossible to pass effective legislation like labor protections and industry regulations that Congress has played an integral role in developing and maintaining across a range of issues for decades.

The Commerce Clause, in particular, has been questioned as an often-cited constitutional power which has long expanded in scope to incorporate important social protections such as child labor laws across American industries like manufacturing, mining, agriculture, and production. The proposed bill requires the Commerce Clause be referenced strictly in cases of inter-state or foreign trade. The clause itself gives the federal government the power to regulate "the buying and selling of goods or services, or the transporting for those purposes, across boundaries with foreign nations, across State lines, or with Indian tribes …" and has been interpreted to incorporate a range of social protections contained in labor laws regulating the modern economy.

But the interpretation of the clause has long been challenged. In the famous 1918 Supreme Court case Hammer vs. Dagenhart, the court held that the regulation of child labor within one state (and not in an industry running state-to-state) did not stand under the purview of the Congress under the Commerce Clause. While, if passed, the new bill could not be applied retroactively to existing laws, the fear is that the added regulation on Senate procedure would be used to limit the ability to enact similar social protections in the future (including impacting programs such as Medicaid and Medicare, programs which of which Senator Coburn has been a vocal critic).

The bill has gained significant support this time around, as 36 Senate republicans have signed onto the drafted bill, according to Senator Coburn's press release. The full text of the bill is not yet available, but its five components essentially underlining a strict interpretation of constitutional enumeration of legislative power are highlighted in the available sections of the proposal that have been distributed.

Senator Paul has been a vocal supporter of the proposal as co-sponsor with Coburn's effort, saying, "When I ran for the Senate, one of my promises was to fight to pass an Enumerated Powers Act ... Politicians in Washington should abide by their oath to uphold the Constitution by only legislating within the powers it gives to the federal government. I am proud to be the lead co-sponsor of Senator Coburn’s bill to make this a reality."

In theory, the proposal to require Congress to cite the Constitution when legislating should suggest an added procedural burden at most. But the shame of the matter is that there is no doubt that the passage of such changes would be unnecessarily politicized, and would likely add to, rather than ease, political gridlock already making legislation a nightmare in Congress. The fact that the proposed act will likely be more political than productive in nature will probably make it difficult to pass, despite its noble claims, in theory, to ensure the system maintains certain constitutional limits.