Skip to main content

I'm Just a[n Unconstitutional] Bill.

School bus must stop at a railroad crossing.

School House Rock’s “I’m Just a Bill.” We’ve all seen it. We all grew up with it. But how many people actually realize that the Bill that taught us all about the law-making function of Congress is actually an unconstitutional bill? Yeah, that’s right. It’s unconstitutional. You might say, “How could this be?” Well, first, our federal government is a government of enumerated powers;that is to say that the federal government can only exercise powers given to it by the Constitution. These powers are laid out in Article I, Section 8 of the Constitution. Overall, Congress has 18 enumerated powers. Those powers are:

(1) to tax; 
(2) to borrow money on credit; 
(3) to regulate commerce; 
(4) to establish uniform laws of naturalization and bankruptcy; 
(5) to coin money; 
(6) to punish counterfeiting of money; 
(7) to establish post offices and roads; 
(8) to establish a patent system; 
(9) to establish courts lower to the Supreme Court; 
(10) to define and punish piracies and felonies committed on the high seas, and offenses to the law of nations; 
(11) to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 
(12) to raise and support armies; 
(13) to provide and maintain a navy; 
(14) to make rules for the government and regulate the military; 
(15) to provide for calling forth the militia; 
(16) to provide for regulation of the militia; 
(17) to establish a Capital; and 
(18) to make all laws necessary and proper to execute the powers vested in the federal government. 

Congress has also been given the power to enact laws to ensure slavery’s abolition, to ensure equal protection and due process, and protect citizen’s right to vote. 
Last, the Tenth Amendment reserves the powers not granted to Congress to the States or the people.

For those of you who don’t remember what proposition the Bill contained, it was: “School bus must stop at railroad crossing.” Notwithstanding the lack of plurality in the subject, this law is commonplace among the states. However, this law does not fall within one of the powers listed above and thus would exceed the authority granted to Congress by the Constitution. I could see a devious argument saying that it might fall within the Commerce Clause, the Necessary and Proper Clause, or some kind of combination of the two, but let’s be real: the connection is tenuous at best. 
In order for something to fall within the Commerce Clause power, the regulated activity must “substantially affect” interstate commerce. See U.S. v. Lopez, 514 U.S. 549 (1995). Surely, a bus stopping at a railroad crossing would not substantially affect interstate commerce. The entire point of the law is to protect children from deadly accidents, not to ensure some shipment of widgets get from Ohio to Nebraska. Even if the shipment was the real purpose (and I doubt anyone in their right mind would argue it was), forcing only school buses to stop at railroad crossings would be greatly under-inclusive to serve that purpose.

Anyway, maybe the Bill is actually an example of how the process works, considering it hasn’t ever been passed by Congress. Even though the Bill (probably) died, he lives on in our hearts and minds because of his powerful lessons on the legislative process.

I just hope he didn’t end up like the Bill from Family Guy. 


WVU LAW Facebook WVU LAW Twitter WVU LAW Instagram WVU LAW LinkedIn WVU LAW Youtube Channel