The Use of Legislative History in a System of Separated Powers, Putting Legislative History to a Vote: A Response to Professor Siegel, Timing and Delegation: A Reply

The debate over the legitimacy of judicial use of legislative history has significant legal and political ramifications that have long sparked controversy. As additional commentators join this long-running engagement, the focus of the debate necessarily changes. In a previous article, John Manning argued that the use of legislative history violates the constitutional rule barring congressional self-delegation. Jonathan Siegel argues here that judicial reliance on legislative history does not implicate that rule, because a statute\u27s legislative history already exists at the time of the statute\u27s passage, and statutory incorporation of preexisting materials operates as an adoption of those materials, not as a delegation of legislative power. To illustrate this point, Professor Siegel introduces, as a thought experiment, a hypothetical Interpretation of Statutes Act. The Act provides that the legislative history of every future statute will be automatically incorporated into the statute, without express adoption, and instructs courts to give customary weight to that incorporated legislative history. Siegel concludes that, because legislatures are permitted to incorporate, by reference, preenactment legislative history into statutes, such an Act would be constitutional. Disagreeing with that conclusion, Professor Manning responds that Siegel\u27s Act would only formalize an unconstitutional delegation of power. He argues that the resulting arrangement-of the Act or of judicial reliance on legislative history-would allow members of Congress to subvert the aims of bicameralism and presentment. He posits that the hypothetical Act would effectively enable them to vote for a statute without taking full responsibility for legislative history that resulted from factional logrolling. This separation of the legislators\u27 responsibility from the legislative result (viz. statutory text), Manning concludes, permits Congress to enact binding statutory details through a process condemned by Supreme Court jurisprudence because it is not prescribed by the Constitution. In a brief reply, Professor Siegel argues that the hypothetical Interpretation of Statutes Act would not allow law-makers to evade responsibility, because Congress would still be obligated to ratify agent-prepared legislative history when voting for each statute. Because of this chronology, Siegel concludes, the Act would take legislative history out of the delegation doctrine altogether

Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment

States normally enjoy immunity from suit by private parties, but they may waive this immunity. The Supreme Court\u27s steady contraction of other exceptions to the rule of state sovereign immunity has renewed interest in the previously little-discussed possibilities of waiver. This Article explores the boundaries of waiver doctrine. This Article shows that, prior to 1945, the Supreme Court-even as it enforced a broad, substantive rule of state sovereign immunity-applied a sensible doctrine of waiver that balanced the interests of states with those of private parties and the federal judicial system. The Court\u27s traditional doctrine treated state sovereign immunity like the defense of personal jurisdiction. Failure to assert immunity in a timely fashion waived the immunity defense. This rule prevented unfair gamesmanship. Beginning in 1945, the traditional rules concerning waiver of state sovereign immunity got swept away by the overall ideological tide of state sovereign immunity doctrine. The immunity became so important that it overrode all other considerations, including the need to run the federal judicial system in a sensible way. The new rules of waiver permitted states to abuse their immunity and waste federal judicial resources by litigating the merits of a case while holding an immunity defense in reserve. The Supreme Court\u27s most recent decisions suggest that the Court has returned to its traditional rules concerning waiver. The Court should make clear that it has fully reinstated the traditional, sensible, non-ideologized rules of waiver. Such rules respect the states\u27 prerogative of refusing to be sued in a federal forum, while at the same time requiring states to assert their prerogative in an orderly way that respects the needs of the federal judicial system

The Polymorphic Principle and the Judicial Role in Statutory Interpretation

The Supreme Court\u27s statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on both counts. This Article first demonstrates that numerous cases have applied what the Article calls the polymorphic principle that a single phrase in a single statutory provision may have multiple meanings. The Article then uses this question as a window into larger issues of statutory construction and the proper judicial role in our system of government. The article suggests that Martinez cannot be understood independently of its author, Justice Scalia. The case represents a stage in his long-term campaign to limit judicial choice. The article attempts to show that a mechanical view of the judicial role is inappropriate. The Constitution permits the degree of judicial choice necessary to implement the polymorphic principle. Moreover, Justice Scalia\u27s rule does not eliminate judicial choice but only gives the illusion of doing so. Indeed, it has the ironic effect of magnifying the judicial role in statutory interpretation. For these reasons, the Article advocates that courts continue to exercise their appropriate role of making judicious choices in statutory interpretation, a role that will involve continued use of the polymorphic principle in appropriate cases

The Institutional Case for Judicial Review

The “popular constitutionalism” movement has revived the debate over judicial review. Popular constitutionalists have attacked judicial review as being illegitimate in a democracy or inconsistent with original intent, and they have argued that the Constitution should be enforced through popular, majoritarian means, such as elections and legislative agitation. This Article shows in response that the judicial process has institutional characteristics that make judicial review the superior method of constitutional enforcement. Prior literature has focused on just one such institutional characteristic — the political insulation of judges. This Article, by contrast, shows that the case for judicial review rests on a whole range of institutional distinctions among the judicial, electoral, and legislative processes. Most important among these distinctions are that the judicial process is focused (it resolves issues discretely, without entangling them with other issues), whereas the electoral process is unfocused; and the judicial process is mandatory (a complainant can invoke it as of right), whereas the legislative process is discretionary. The full range of its distinctive institutional characteristics, not just the political insulation of judges, normatively justifies judicial review

Judicial Interpretation in the Cost-Benefit Crucible

This article responds to Professor Adrian Vermeule\u27s new book, Judging Under Uncertainty. Professor Vermeule argues that (1) no one can empirically determine whether judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text has any positive net benefits, but (2) we do know that such interpretive methods impose costs, and therefore (3) courts should discard such interpretive methods. This article suggests that (1) it is far from clear how costly these interpretive methods are, (2) it is also not clear that discarding them would result in any cost savings, both because of costs that would remain if only some judges adopted Professor Vermeule\u27s theory and because, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs, such as the costs imposed by judicial enforcement of clear but erroneously drafted statutory text that leads to absurd results, and (3) there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, the article recommends against adoption of Professor Vermeule\u27s interpretive theory

Political Questions and Political Remedies

Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy - they can seek relief at the ballot box or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of the different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always represent a package of positions on many issues, so that voters do not actually have an opportunity to vote for or against a particular, allegedly unconstitutional action. The judicial process produces reasons for its decisions; the electoral process produces only an inscrutable result, so that even if voters managed to defeat a candidate because of unconstitutional action, no one could really know it. The judicial process operates within a system of precedent; political battles may have to be fought afresh each election cycle. The judicial process is mandatory; legislatures may choose to ignore political agitation. Finally, the judicial process operates according to law; the political and electoral processes are majoritarian and are not likely to be good vehicles for enforcing constraints on majoritarianism. These differences between the judicial, political, and electoral processes demonstrate the error of arguing that the political and electoral processes provide an adequate substitute for a judicial remedy. They also show that the political insulation of judges, although very important, is only one factor supporting the institution of judicial review. Judicial review also rests on the distinctive features of the judicial process: that it is focused, that it is mandatory, that it articulates norms explicitly, and that it operates within a system of precedent. Defenders of the political question doctrine must explain not only why we should entrust constitutional questions to officials not insulated from politics, but why we should entrust them to a process lacking these other, vital features of judicial review