The Constitution and Legislative History

In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power. This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply—after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should be of greater concern to a variety of constitutional theorists, particularly those who embrace theories of popular and common law constitutionalism, but as well to originalists. In part II, the author considers the textualist arguments against the constitutionality of legislative history. Article I, Section 7 provides that any bill must pass the House and the Senate and be presented to the President for veto or signature. As a number of textualists have argued, legislative history is not passed by both houses or signed by the President. Call this the “bicameralism argument.” Her answer to the bicameralism argument lies in a constitutional text that statutory textualists seem to have forgotten: Article I, Section 5 gives explicit power to Congress to set its own procedures, a power that gives legitimacy to legislative history created pursuant to those procedures. In fact, new developments in statutory interpretation theory (decision process theory) suggest that, in some cases, the only way to resolve textual conflict is to consider legislative procedure. In part III, the author considers a second prominent argument against the constitutionality of legislative history: non-delegation. Critics argue that Congress may not delegate the “legislative power” granted under the Constitution to members or committees, as only the entire Congress may constitutionally exercise that power. Call this the “non-delegation” argument. Again, her response is based on constitutional text: Article I, Section 5 specifically sanctions delegation to less than the whole of Congress; more importantly, there is no general norm against self-delegation stated explicitly or even implicitly in the Constitution. Finally, the author suggests that there is a certain inconsistency in the assertion of these claims: the non-self-delegation and bicameralism arguments can both be used to indict canons of construction, which textualists offer as the leading alternative to legislative history, but which have no supporting text comparable to Article I section 5 in the Constitution. In part IV, she considers arguments that judges’ use of legislative history violates the separation of powers because it allows the legislature to exceed the bounds of the “judicial power.” This argument can rather easily be turned on its head: in the quotations offered at the beginning of this article, members of Congress argue that judges are exercising the “legislative power” when they rewrite statutes without considering legislative history. As has been argued at length elsewhere, the use of “adjectival” argument in structural controversies—relying upon the terms “legislative, executive, and judicial”—perpetuates a weak understanding of the separation of powers, and one that the Constitution’s own text belies. The separation of powers does not prevent recourse to legislative history; in fact, as the article explains, blindness to legislative history may create different kinds of structural risks—risks to federalism, rather than risks to the separation of powers. Finally, in part V, the author concludes by suggesting that we should retire the strong form of the legislative history unconstitutionality argument, by which she means the claim that the constitution bars any and all legislative history. Instead, we should far more actively interrogate serious questions about the use of legislative history in particular cases. Can it really be wise—or even constitutional—for a judge to impose a meaning on an ambiguous statute with reference to the state-ments of a filibustering minority, or privilege some texts in ways that violate Congress’s rules? Fidelity to Congress, and the importance of Congress’s constitutional rules—what Francis Lieber once called the “common law” of the Congress—has yet to be theorized within this more pressing, but particular, sphere

Legislative Delegation and Two Conceptions of the Legislative Power

[Excerpt] The current federal government, with its burgeoning administrative agencies, does not embody what most Americans would recognize as the constitutional doctrine of separation of powers. This is, in part, due to the Congress’s frequent practice of delegating legislative powers to the executive branch, i.e., giving administrative agencies the power to promulgate rules regulating private behavior and having the force of law. Legislative delegation has been the subject of academic, legal, and political wrangling since the early congresses and clearly calls into question whether modern practice adheres to constitutional norms. This article discusses legislative delegation in terms of some core ideas that informed the writing and ratification of the Constitution, and then look at debates on legislative delegation from the early republic, the Progressive era, and modern times. Ultimately, this article argues that the no delegation doctrine – that legislative power cannot be delegated to the executive consistently with the Constitution – should be viewed as an important protector of constitutional values whose judicial enforcement is both desirable and practicable. In Part II, I discuss how the change in the conception of law and legislative power over the eighteenth century ought to influence how one appraises the propriety of legislative delegation. In Part III, I consider important debates over delegation occurring at critical moments in the history of delegation. Instead of focusing on the relatively familiar historical narrative of Supreme Court cases, I concentrate on the unchanging themes underlying arguments about delegation. In Part IV, I consider the main point of contention in modern discussions of delegation, namely judicial review, and evaluate assertions regarding its practicability and clarity

\u3ci\u3eBond v. United States\u3c/i\u3e: Concurring in the Judgment

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress

Missouri v. Holland’s Second Holding

The Supreme Court in Missouri v. Holland famously held that Congress has the power to pass a law to implement a treaty even if the law would not fall within Congress’ legislative power in the absence of the treaty. Essential to this holding were two distinct propositions. The first proposition is that the treaty-makers have the constitutional power to make treaties on matters falling outside Congress’ enumerated powers. The second is that, if the treaty-makers make such a treaty and the treaty is not self-executing, the Necessary and Proper Clause gives Congress the power to implement such a treaty through a statute even if, in the absence of the treaty, the statute would be beyond Congress’s legislative power. The Court in Missouri v. Holland focused on the first proposition. It devoted only one sentence to the second proposition: “If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.” Controversy concerning the issue addressed in Missouri v. Holland has recurred throughout our history, but, each time, the controversy has revolved around the first proposition. That Congress has the power to implement any obligations undertaken under valid treaties has not been seriously questioned – until recently. In recent articles, critics of Missouri v. Holland have argued that it is the second holding that should be rejected. In their view, the Constitution permits the making of treaties falling outside Congress’ legislative power under Article I, but denies Congress the power to implement such treaties. It is easy to see why no one has ever regarded such a regime as plausible: it would contradict one of the Founders’ key convictions – that the federal government must have the power to assure compliance with its international commitments. Although their particular proposals are untenable in light of the Founders’ design, these critics are on the right track insofar as they identify the second of Missouri v. Holland’s holdings as the potentially problematic one from a federalism perspective. The scope of the actual federalism problem attributable to the holding of Missouri v. Holland, however, is far more limited thanthey suggest, and does not warrant a complete rethinking of Treaty Power doctrine. It just requires some tinkering around Missouri v. Holland’s edges. The potential federalism problem concerns only aspirational treaty provisions, which might easily gain Senate consent because they do not appear to require anything in particular, but, under a broad interpretation of Missouri v, Holland, could then be the basis of a broad legislative power on matters falling outside Article I. The solution I propose is to exclude aspirational treaties from the scope of Missouri v. Holland’s second holding.The power to implement treaties under the Necessary and Proper clause is the power to require compliance with treaty obligations. Because aspirational treaty provisions do not impose obligations in any meaningful sense of the term, the clause does not give Congress the power to implement such provisions. If such provisions concern matters otherwise beyond Congress’ legislative powers, the Constitution leaves their implementation to the States

Bargaining in Legislatures: An Empirical Investigation

While the theoretical literature on non-cooperative legislative bargaining has grown voluminous, there is little empirical work attempting to test a key prediction in this literature: proposal power is valuable. This paper aims to fill this gap in the literature by investigating the role of proposal power in the allocation of transportation projects across U.S. Congressional districts in 1991 and 1998. The evidence supports the key qualitative prediction of the Baron and Ferejohn legislative bargaining model: members with proposal power, those sitting on the transportation authorization committee, secure more project spending for their districts than do other representatives. Support for the quantitative restrictions on the value of proposal power, which are more powerful than the qualitative restrictions, is more mixed. I then empirically address several alternative models of legislative behavior, including partisian models, informational roles for committees, models with appropriations committees, and theories of committees as preference outliers.

Unjust enrichment as a principle of Australian constitutionalism

This article examines the central role of unjust enrichment in Australian constitutionalism. The Australian Constitution, amongst other things, divides the legislative powers of the Australian federal system between the Commonwealth (central) and State (regional) governments. Section 51 Constitution provides that the Commonwealth Parliament shall have power to make laws for the peace, order, and good government of the Commonwealth with respect to an enumerated list of powers. One of the enumerated legislative powers of the Commonwealth is the power to make laws with respect to the "acquisition of property on just terms from any State or person ...". The provision operates firstly to give the Commonwealth power to acquire property and secondly as an individual right or guarantee of just terms; that is as a constitutional protection of the right to private property..

Comment on Ferejohn’s “Judicializing Politics, Politicizing Law”

Munger comments on John Ferejohn\u27s recent article in which Ferejohn examines some key issues raised by the exercise of legislative power by the judicial branch. Ferejohn claims that Americans have chosen to accept the judicialization of politics, leaving the courts the option of exercising power inappropriately. Munger argues that while the courts do have power, they forebear from exercising it for long periods of time

Judicializing Politics, Politicizing Law

Since WWII there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. It is no surprise that appointments to both the US Supreme Court and to other federal courts have become partisan political issues. Ferejohn argues that what is at stake, institutionally, is the allocation of legislative power--the power to establish general rules of prospective application

A Three-Dimensional Voting System in Hong Kong

The voting system in the Legislative Council of Hong Kong (Legco) is sometimes unicameral and sometimes bicameral, depending on whether the bill is proposed by the Hong Kong government. Therefore, although without any representative within Legco, the Hong Kong government has certain degree of legislative power --- as if there is a virtual representative of the Hong Kong government within the Legco. By introducing such a virtual representative of the Hong Kong government, we show that Legco is a three-dimensional voting system. We also calculate two power indices of the Hong Kong government through this virtual representative and consider the $C$-dimension and the $W$-dimension of Legco. Finally, some implications of this Legco model to the current constitutional reform in Hong Kong will be given

Revenge of Mullaney v. Wilbur: United States v. Booker and the Reassertion of Judicial Limits on Legislative Power to Define Crimes, The

This article offers a historically grounded account of the twists and turns in the Supreme Court\u27s sentencing jurisprudence from the end of World War II to the Court\u27s stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court\u27s effort to respond to the changing political and social landscape of crime in America. In the mid 1970\u27s, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave it to legislators who did not seem disposed to exercise their authority too broadly. By the late 1990\u27s the tide had shifted and the Court turned sentencing doctrine on its head to take power over criminal law from legislative bodies inclined to push the limits of their power and transfer it back to a newly cautious judiciary. This article explores how that shift in power was informed by changing social and political conditions and was accomplished through doctrines regulating the Sixth Amendment right to trial