Once again, we are seeing bills introduced into the House, which requires a ‘Constitutional Authority Statement’ to even be read and that statement is totally incorrect for the proposed bill/law.
The latest is H R 3829
To amend chapter 1 of title 1, United States Code, with regard to the definition of marriage and spouse for Federal purposes and to ensure respect for State regulation of marriage.
While HR 3829 has it’s good merits, and there is a possibility of it passing the House, it will die in the present Senate and of course never get to the White House. After all, this bill would DECREASE federal power over the States and that is something this regime would not tolerate.
However, regardless of one’s feelings for this bill, the Constitutional Authority Statement is basically null and void. If by some remote chance it did become law, it would be open to a constitutionality challenge.
The Constitutional Authority Statement says that Congress has the power under Article 1 § 8 Clause 1 and Clause 18.
Clause 1 is just a preamble to the Enumerated Powers that immediately, and Clause 1, in itself does NOT grant Congress ANY additional powers whatsoever. In Federalist No. 41 (last 4 paragraphs) James Madison addresses this precise issue. He points out that the first paragraph of Art. I, § 8 employs “general terms” which are immediately followed by the Enumerated powers.
Clause 18 is a further restriction and like Clause 1, it itself does not grant Congress any additional powers. So to invoke either Clause 1 or 18, or even both, one of the other 16 clauses must be included (if possible) for the bill to be Constitutional.