Build Housing Affordably Act

The Congress possesses broad authority under Article I, Section 8, Clause 18 to make all laws which shall be necessary and proper for carrying into execution its enumerated powers, including the power to regulate federal contracting. Exempting certain projects from the contract disputes procedures of chapter 83 of title 41 is a legislative classification that, in principle, falls within that authority. However, the Constitution's Fifth Amendment guarantee of due process requires that any such exemption not be arbitrary or capricious, nor deny contractors equal protection of the laws. Without c…

This bill purports to exempt certain projects from federal procurement requirements. While the federal government may regulate its own contracting under Article I, Section 8, the Tenth Amendment reserves all powers not delegated to the United States to the States or the people. If the 'covered projects' are purely intrastate or otherwise outside the enumerated powers of Congress, then any federal requirement—or exemption from such requirement—would be an improper assumption of authority. The bill's constitutionality thus hinges on whether the projects fall within a legitimate federal power, su…

The proposed exemption from procurement requirements under Title 41 must be examined against the constitutional principle that Congress may not delegate its legislative power without clear standards, nor may it exempt projects from general laws without a specific enumerated power. Under Article I, Section 8, Congress has the power to regulate commerce and to make all laws necessary and proper for executing its enumerated powers. However, the Constitution requires that laws operate uniformly and not create arbitrary privileges, as factional favoritism would undermine the public good (Federalist…

The Constitution vests in Congress the power to regulate commerce among the several states and to make all laws which shall be necessary and proper for carrying into execution its enumerated powers. The regulation of federal contracts falls squarely within the commerce power, and the decision to exempt certain projects from statutory requirements is a permissible exercise of legislative discretion. As established in McCulloch v. Maryland, Congress may choose the means by which it executes its powers, and such choices are entitled to great deference. No constitutional provision prohibits Congre…