Modes of Constitutional Interpretation

The US Constitution leaves many basic questions of constitutional law unanswered, whether because they could not be anticipated or because the text is broadly worded or ambiguous.

Consequently, “Interpretation is necessary to determine the meaning of ambiguous provisions of the Constitution or to answer fundamental questions left unaddressed by the drafters,” a new report from the Congressional Research Service explains.

But there are different ways to perform such interpretation that may yield different results.

The new CRS report provides a helpful introduction to the most common “modes” of interpretation, including textualism, original meaning, judicial precedent, pragmatism, moral reasoning, national identity, structuralism, and historical practices.

Interpreting the Constitution is not a task left solely to the Supreme Court; it is also a responsibility of Members of Congress. “Members should vote upon legislation based on their own constitutional interpretations, which may be at odds with the Court’s,” wrote former Sen. Russ Feingold, but “they should not vote for legislation without any thought whatsoever regarding its constitutionality.”

See Modes of Constitutional Interpretation, March 15, 2018.

Other new and updated reports from the Congressional Research Service include the following.

The U.S. Export Control System and the Export Control Reform Initiative, updated March 15, 2018

The Committee on Foreign Investment in the United States (CFIUS), updated March 13, 2018

China-U.S. Trade Issues, updated March 14, 2018

Pass-Throughs, Corporations, and Small Businesses: A Look at Firm Size, updated March 15, 2018

Jurisdiction Stripping: When May Congress Prohibit the Courts from Hearing a Case?CRS Legal Sidebar, March 15, 2018

Membership of the 115th Congress: A Profile, updated March 19, 2018

Women in Congress, 1917-2018: Service Dates and Committee Assignments by Member, and Lists by State and Congress, updated March 19, 2018

Does CRS Need to “Recalibrate Its Objectivity”?

Last year, the Congressional Research Service generated more than 1,100 new products and and updated 2,100 others, according to a new CRS annual report to Congress.

The annual report describes the Service’s structure, operation, recent activities and new initiatives. It scarcely mentions thorny issues such as the adequacy of the CRS budget, or the challenges posed by the retirement of senior analysts. It does not address the question of providing broad public access to CRS reports at all.

But it does include a useful listing of all new and updated CRS products from the past year, covering an impressive range of issues (in Appendix F).

See CRS Annual Report, Fiscal Year 2017, January 2018 (published March 2018).

Recently, a group of current and former CRS analysts wrote to CRS director Mary Mazanec and Librarian of Congress Carla Hayden to raise questions about CRS’s “approach to objectivity and saliency in today’s political environment.”

Objectivity is not the same as neutrality or refusal to express a conclusion, they argued.

“We are concerned that CRS risks falling short of its mission if it holds back the independent analysis that Congress has directed us to provide. Sparking our concern, CRS has appeared to avoid reaching conclusions in some topic areas with high potential for political controversy. In some such topic areas, CRS operates as a neutral compiler of facts and opinions, with little of the expert analysis, appraisal, and evaluation of their credibility that Congress requires. CRS also seems to have avoided a few topics or facets of topics almost entirely,” the current and former CRS authors wrote in January 12 letter.

In short, they suggested, CRS needs to “recalibrate its objectivity practices.”

Some new and updated CRS reports this week include the following.

Arming Teachers as a Response to School ShootingsCRS Insight, March 13, 2018

Can the Government Prohibit 18-Year-Olds from Purchasing Firearms?CRS Legal Sidebar, March 13, 2018

The President Acts to Impose Tariffs on Steel and Aluminum ImportsCRS Insight, March 13, 2018

Organization of American States: Background and Issues for Congress, updated March 14, 2018

Northern Ireland, Brexit, and the Irish BorderCRS Insight, March 12, 2018

Russia’s 2018 Presidential ElectionCRS Insight, March 13, 2018

Navy Columbia (SSBN-826) Class Ballistic Missile Submarine Program: Background and Issues for Congress, updated March 13, 2018

Censuring the President, and More from CRS

House Democrats have introduced two resolutions in the current Congress to censure the President. Neither resolution is expected to advance.

But a new memo from the Congressional Research Service considers whether such resolutions are permissible in practice, and concludes: “It would appear that Congress may censure the President through a simple (one chamber) or concurrent (two chamber) resolution, or other non-binding measure, so long as the censure does not carry with it any legal consequence.” See The Constitutionality of Censuring the PresidentCRS Legal Sidebar, March 12, 2018.

Other new and updated publications from the Congressional Research Service include the following.

Threats to National Security Foiled? A Wrap Up of New Tariffs on Steel and AluminumCRS Legal Sidebar, March 12, 2018

Cybersecurity: Selected Issues for the 115th Congress, March 9, 2018

Defense Primer: U.S. Transportation Command (TRANSCOM)CRS In Focus, March 6, 2018

Does Executive Privilege Apply to the Communications of a President-elect?CRS Legal Sidebar, March 8, 2018

The United Kingdom: Background, Brexit, and Relations with the United States, updated March 12, 2018

Northern Ireland: Current Issues and Ongoing Challenges in the Peace Process, updated March 12, 2018

TPP Countries Sign New CPTPP Agreement without U.S. ParticipationCRS Insight, March 9, 2018

US Strategic Nuclear Forces, and More from CRS

The Congressional Research Service recently updated its report on US nuclear weapons and programs. See U.S. Strategic Nuclear Forces: Background, Developments, and Issues by Amy F. Woolf, March 6, 2018.

That is also the subject of a new survey prepared by Hans M. Kristensen and Robert S. Norris of the Federation of American Scientists. See United States nuclear forces, 2018, Bulletin of the Atomic Scientists, March 5, 2018.

Other new and updated reports from the Congressional Research Service include the following.

Joint Resolution Seeks to End U.S. Support for Saudi-led Coalition Military Operations in Yemen, CRS Insight, March 5, 2018

Iraq: In Brief, March 5, 2018

Tensions in the Eastern Mediterranean Focus on the Politics of Energy, CRS Insight, March 1, 2018

Qatar: Governance, Security, and U.S. Policy, updated March 1, 2018

Millennium Challenge Corporation, updated March 7, 2018

Material Support for Terrorism Is Not Always an “Act of International Terrorism,” Second Circuit Holds, CRS Legal Sidebar, March 5, 2018

So, Now Can Menachem Zivotofsky Get His Passport Reissued to Say “Israel”?, CRS Legal Sidebar, March 1, 2018

Responding to the Opioid Epidemic: Legal Developments and FDA’s Role, CRS Legal Sidebar, March 6, 2018

Banking Policy Issues in the 115th Congress, updated March 7, 2018

How Hard Should It Be To Bring a Class Action?, CRS Legal Sidebar, March 7, 2018

Nuclear Weapons Spending, Blockchain, & More from CRS

The Trump Administration requested $11.02 billion for maintenance and refurbishment of nuclear weapons in the coming year. This represents a 19% increase over the amount appropriated in FY2017.

Recent and proposed nuclear weapons-related spending is detailed by Amy F. Woolf of the Congressional Research Service in Energy and Water Development Appropriations: Nuclear Weapons Activities, February 27, 2018.

Another new CRS report discusses blockchain, the technology that underlies cryptocurrencies such as Bitcoin. Blockchain provides a way to securely record transactions of various types. “Despite public intrigue and excitement around the technology, questions still surround what it is, what it does, how it can be used, and its tradeoffs.”

“This report explains the technologies which underpin blockchain, how blockchain works, potential applications for blockchain, concerns with it, and potential considerations for Congress.” See Blockchain: Background and Policy Issues, February 28, 2018.

Other recent reports from the Congressional Research Service include the following.

Defense Spending Under an Interim Continuing Resolution: In Brief, updated February 23, 2018

Armed Conflict in Syria: Overview and U.S. Response, updated February 27, 2018

U.S. Foreign Aid to Israel, updated February 26, 2018

Federal Civil Aviation Programs: In Brief, updated February 27, 2018

Health Care for Dependents and Survivors of Veterans, updated February 26, 2018

Joint Light Tactical Vehicle (JLTV): Background and Issues for Congress, updated February 27, 2018

The European Union: Questions and Answers, updated February 23, 2018

Congress Moves to Loosen Controls on Handguns

Recent polls indicate that a large majority of Americans favor stricter gun laws. But lately Congress has been moving in the opposite direction.

In December, the House of Representatives passed the Concealed Carry Reciprocity Act of 2017 (HR 38) which would generally allow persons who are authorized to carry a concealed handgun in one state to carry a handgun in other states even if the latter states have different eligibility requirements for concealed carry.

Not only that: The bill also provides for a private right of action so that the gun owner could sue any person or agency, apparently including a law enforcement agency, that interferes with his concealed-carry rights.

This provision “raises numerous legal questions,” the Congressional Research Service said in a brief new analysis. “For instance, what rights does the bill bestow, who may enforce them, and who may be sued for interfering with those rights?”

See Civil-Suit Provision in House-Passed Concealed Carry Reciprocity Bill (H.R. 38): Scope and Application, CRS Legal Sidebar, February 21, 2018.

These questions were also addressed at greater length in another new CRS publication. See Civil-Suit Provision in the House-passed Concealed Carry Reciprocity Act of 2017 (H.R. 38), CRS memorandum, February 20, 2018.

Other new and updated reports from the Congressional Research Service include the following.

FY2019 Budget: Government Reorganization and Federal Workforce Reform, CRS Insight, February 22, 2018

Pedal to the Metal: Commerce Recommends Revving Up Trade Measures on Steel and Aluminum, CRS Legal Sidebar, February 21, 2018

Bankruptcy and Student Loans, February 22, 2018

FY2018 Defense Spending Under an Interim Continuing Resolution, CRS In Focus, updated February 20, 2018

Defense Primer: Under Secretary of Defense for Research and Engineering, CRS In Focus, February 21, 2018

Defense Primer: Future Years Defense Program (FYDP), CRS In Focus, February 16, 2018

A Profile of Defense Science & Tech Spending

Annual spending on defense science and technology has “grown substantially” over the past four decades from $2.3 billion in FY1978 to $13.4 billion in FY2018 or by nearly 90% in constant dollars, according to a new report from the Congressional Research Service.

Defense science and technology refers to the early stages of military research and development, including basic research (known by its budget code 6.1), applied research (6.2) and advanced technology development (6.3).

“While there is little direct opposition to Defense S&T spending in its own right,” the CRS report says, “there is intense competition for available dollars in the appropriations process,” such that sustained R&D spending is never guaranteed.

Still, “some have questioned the effectiveness of defense investments in R&D.”

CRS takes note of a 2012 article published by the Center for American Progress which argued that military spending was an inefficient way to spur innovation and that the growing sophistication of military technology was poorly suited to meet some low-tech threats such as improvised explosive devices (IEDs) in Iraq and Afghanistan (as discussed in an earlier article in the Bulletin of the Atomic Scientists).

The new CRS report presents an overview of the defense science and tech budget, its role in national defense, and questions about its proper size and proportion. See Defense Science and Technology Funding, February 21, 2018,

Other new and updated reports from the Congressional Research Service include the following.

Armed Conflict in Syria: Overview and U.S. Response, updated February 16, 2018

Jordan: Background and U.S. Relations, updated February 16, 2018

Bahrain: Reform, Security, and U.S. Policy, updated February 15, 2018

Potential Options for Electric Power Resiliency in the U.S. Virgin Islands, February 14, 2018

U.S. Manufacturing in International Perspective, updated February 21, 2018

Methane and Other Air Pollution Issues in Natural Gas Systems, updated February 15, 2018

Where Can Corporations Be Sued for Patent Infringement? Part ICRS Legal Sidebar, February 20, 2018

How Broad A Shield? A Brief Overview of Section 230 of the Communications Decency ActCRS Legal Sidebar, February 21, 2018

Russians Indicted for Online Election TrollingCRS Legal Sidebar, February 21, 2018

Hunting and Fishing on Federal Lands and Waters: Overview and Issues for Congress, February 14, 2018

Nonstrategic Nuclear Weapons, and More from CRS

New and updated reports from the Congressional Research Service this week include the following.

Nonstrategic Nuclear Weapons, updated February 13, 2018

Congressional Gold Medals: Background, Legislative Process, and Issues for Congress, February 9, 2018

D.C. Circuit Upholds as Constitutional the Structure of the CFPB — Part I, CRS Legal Sidebar, February 12, 2018

Israel: Background and U.S. Relations In Brief, updated February 12, 2018

Department of State, Foreign Operations, and Related Programs: FY2018 Budget and Appropriations, updated February 12, 2018

Ecuador: In Brief, updated February 13, 2018

Diversity Immigrants’ Regions and Countries of Origin: Fact Sheet, February 13, 2018

HPSCI Memorandum Sparks Debate over FISA Application Requirements, CRS Legal Sidebar, February 14, 2018

Army Directed Energy Weapons, and More from CRS

U.S. Army efforts to develop directed energy weapons — such as lasers and microwave weapons — are surveyed in a new report from the Congressional Research Service.

Such weapons are probably years away from actual deployment by the Army, if indeed they ever become practical options.

“While DE weapons offer a variety of advantages over conventional kinetic weapons including precision, low cost per shot, and scalable effects, there are also some basic constraints such as beam attenuation, limited range, and an inability to be employed against non-line-of-sight targets which will need to be addressed in order to make these weapons effective across the entire spectrum of combat operations,” the CRS report said.

The status of some directed energy programs is obscured by secrecy, CRS said. “The classified nature of most of DOD’s HPM [high-power microwave] programs… makes public and academic examination of these programs problematic.”

The first DoD laser weapon ever to be approved for operational use was deployed aboard the USS Ponce (now decommissioned), according to the U.S. Navy.

See U.S. Army Weapons-Related Directed Energy (DE) Programs: Background and Potential Issues for Congress by Andrew Feickert, February 7, 2018.

Other new and updated reports from the Congressional Research Service include the following.

Egypt: Background and U.S. Relations, February 8, 2018

Iran: Politics, Human Rights, and U.S. Policy, February 8, 2018

Yemen: Civil War and Regional Intervention, February 7, 2018

Rwanda: In Brief, February 7, 2018

The 10-20-30 Plan and Persistent Poverty Counties, February 8, 2018

Medicare Trigger, February 8, 2018

Women in Congress, 1917-2018: Service Dates and Committee Assignments by Member, and Lists by State and Congress, February 6, 2018

Federal Spending on Benefits and Services for People with Low Income: In Brief, February 6, 2018

Introduction to U.S. Economy: The Business Cycle and Growth, CRS In Focus, December 13, 2017

DARPA: An Overview, and More from CRS

The Defense Advanced Projects Research Agency, established in 1958, is responsible for advancing the state of the art in defense science and technology. The agency’s structure, priorities and budget are discussed in a new report from the Congressional Research Service. See Defense Advanced Research Projects Agency: Overview and Issues for Congress, February 2, 2018.

(For a lively and revealing history of DARPA, see Sharon Weinberger’s recent book The Imagineers of War: The Untold Story of DARPA, the Pentagon Agency That Changed the World, Knopf, 2017.)

Other new and updated reports from the Congressional Research Service include the following.

Resolutions to Censure the President: Procedure and History, February 1, 2018

Evolving Assessments of Human and Natural Contributions to Climate Change, February 1, 2018

Real Wage Trends, 1979 to 2016, January 30, 2018

Gun Control: Concealed Carry Legislation in the 115th CongressCRS Insight, January 30, 2018

Termination of Temporary Protected Status for Sudan, Nicaragua, Haiti, and El Salvador: Key Takeaways and AnalysisCRS Legal Sidebar, February 2, 2018

U.S. Foreign Assistance to Latin America and the Caribbean: FY2018 Appropriations, February 5, 2018

The Balkans and RussiaCRS Insight, January 31, 2018

Iraq: In Brief, February 6, 2018

Al Qaeda and U.S. Policy: Middle East and Africa, February 5, 2018

U.S. Security Assistance and Security Cooperation Programs: Overview of Funding Trends, February 1, 2018

The 2018 National Defense StrategyCRS Insight, February 5, 2018

The New START Treaty: Central Limits and Key Provisions, updated February 5, 2018

New Nuclear Warheads: Legislative ProvisionsCRS Insight, February 5, 2018

Criminal Prohibitions on Disclosing the Identities of Covert Intelligence AssetsCRS Legal Sidebar, February 6, 2018