House Repeal Bills Test How Congress Cites Constitutional Authority

Why It Matters

House lawmakers have broad discretion in how they identify the constitutional authority for legislation seeking to repeal existing federal laws, raising questions about how Congress justifies its power to undo statutes already on the books.

A recent Congressional Research Service report published Aug. 14 examines a constitutional question that arises when House members introduce legislation to repeal existing federal statutes. House rules require members introducing bills or joint resolutions to submit a Constitutional Authority Statement identifying Congress’s constitutional power to enact the measure. The report notes that identifying the source of authority can become less straightforward when a bill seeks to repeal a law that its sponsor believes Congress lacked the constitutional power to enact in the first place.

The House has required Constitutional Authority Statements since Jan. 5, 2011, when it amended House Rule XII. The statement must identify Congress’s constitutional authority as specifically as practicable, but it does not become part of the bill itself and does not go through bicameral passage or presidential presentment. As a result, it has no direct legal effect and is not binding on courts.

The House Clerk must ensure that the required statement accompanies a measure but does not evaluate whether the constitutional justification is adequate. That question is left to members during consideration of the legislation. Courts may consider such statements as legislative history, but the report notes that courts have independently evaluated statutes’ constitutionality regardless of what their Constitutional Authority Statements say.

The Big Picture

The report reviewed bills and joint resolutions introduced in the House during the 118th Congress and identified at least 18 bills that explicitly sought to repeal an existing federal statute.

Fourteen of the 18 bills cited Article I, Section 8 as their sole constitutional authority. Three cited the Necessary and Proper Clause in Article I, Section 8, Clause 18. One cited the Commerce Clause. The findings reflect the broad discretion members have when drafting Constitutional Authority Statements and the absence of a specific constitutional provision expressly granting Congress a power to repeal federal statutes.

H.R. 10414 sought to repeal the Impoundment Control Act of 1974. Its sponsor argued that the law was unconstitutional because it infringed on presidential power, while the bill’s Constitutional Authority Statement cited the Necessary and Proper Clause. The report identifies several possible approaches for lawmakers seeking to repeal laws they believe are unconstitutional. Members could cite the authority Congress relied on to enact the original law, the constitutional provision they believe Congress exceeded, the Necessary and Proper Clause, or Article I, Section 8 more generally.

Other repeal measures included H.R. 812, which sought to repeal the Inflation Reduction Act of 2022, H.R. 8147, which sought to repeal the Corporate Transparency Act, and H.R. 10454, which sought to repeal Section 138 of the Clean Air Act. H.R. 7288 targeted the waiver authority in Section 907 of the FREEDOM Support Act concerning assistance to Azerbaijan, while H.R. 6563 sought to repeal Section 24220 of the Infrastructure Investment and Jobs Act. H.R. 5037 sought to repeal certain Family and Medical Leave Act limits applying to married employees working for the same employer.

The Bottom Line

The Constitution does not expressly address Congress’s authority to repeal federal statutes, but the Supreme Court has long recognized that Congress may do so. In INS v. Chadha, the court held that repealing a statute must comply with the same Article I procedures required to enact legislation, including passage by both chambers and presentment to the president.

The report also noted an ongoing debate over the usefulness of Constitutional Authority Statements. Critics argue that broad citations such as Article I, Section 8 provide little meaningful explanation of Congress’s constitutional authority and that the statements have no external legal enforcement. Supporters view the requirement as a way to encourage members to consider constitutional limits when legislating. Proposals for changing the rule have included requiring fuller constitutional analyses or applying the requirement at additional stages of the legislative process.

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