Judicial review, the congressional process, and the federalism cases: An interdisciplinary critique

Yale Law Journal

Volumn 111, Issue 7, 2002, Pages 1707-1755

  Frickey, Philip P ^a   Smith, Steven S ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0038619226     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797535     Document Type: Review

References (209)

1. ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH (1962).
2. Barry Friedman, The History of the Countermajoritarian Difficulty, Part Five: The Birth of an Academic Obsession (2001) (unpublished manuscript, on file with authors).
3. See, e.g., JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).
4. See, e.g., JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).
5. In reviewing a book on legal philosophy, Prosser wrote, in his inimitable style, of his own brief study of philosophy: The principal thing that I remember about philosophy . . . is the definition of a philosopher. I am sure that everyone knows it: a philosopher is a blind man in a dark cellar at midnight looking for a black cat that isn't there. He is distinguished from a theologian, in that the theologian finds the cat. He is also distinguished from a lawyer, who smuggles in a cat in his overcoat pocket, and emerges to produce it in triumph. William L. Prosser, My Philosophy of Law, 27 CORNELL L.Q. 292, 294 (1942) (reviewing MY PHILOSOPHY OF LAW (1941)), reprinted in TRIALS & TRIBULATIONS: APPEALING LEGAL HUMOR 1, 3-4 (Daniel R. White ed., 1989). No, we are not about to cite any examples.
6. In reviewing a book on legal philosophy, Prosser wrote, in his inimitable style, of his own brief study of philosophy: The principal thing that I remember about philosophy . . . is the definition of a philosopher. I am sure that everyone knows it: a philosopher is a blind man in a dark cellar at midnight looking for a black cat that isn't there. He is distinguished from a theologian, in that the theologian finds the cat. He is also distinguished from a lawyer, who smuggles in a cat in his overcoat pocket, and emerges to produce it in triumph. William L. Prosser, My Philosophy of Law, 27 CORNELL L.Q. 292, 294 (1942) (reviewing MY PHILOSOPHY OF LAW (1941)), reprinted in TRIALS & TRIBULATIONS: APPEALING LEGAL HUMOR 1, 3-4 (Daniel R. White ed., 1989). No, we are not about to cite any examples.
7. In reviewing a book on legal philosophy, Prosser wrote, in his inimitable style, of his own brief study of philosophy: The principal thing that I remember about philosophy . . . is the definition of a philosopher. I am sure that everyone knows it: a philosopher is a blind man in a dark cellar at midnight looking for a black cat that isn't there. He is distinguished from a theologian, in that the theologian finds the cat. He is also distinguished from a lawyer, who smuggles in a cat in his overcoat pocket, and emerges to produce it in triumph. William L. Prosser, My Philosophy of Law, 27 CORNELL L.Q. 292, 294 (1942) (reviewing MY PHILOSOPHY OF LAW (1941)), reprinted in TRIALS & TRIBULATIONS: APPEALING LEGAL HUMOR 1, 3-4 (Daniel R. White ed., 1989). No, we are not about to cite any examples.
8. See JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993).
9. See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998); FORREST MALTZMAN ET AL., CRAFTING LAW ON THE SUPREME COURT (2000).
10. See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998); FORREST MALTZMAN ET AL., CRAFTING LAW ON THE SUPREME COURT (2000).
11. See A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court's New "On the Record" Constitutional Review of Federal Statutes, 86 CORNELL L. REV. 328 (2001); William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 STAN. L. REV. 87 (2001); Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80 (2001); see also Frank B. Cross, Realism About Federalism, 74 N.Y.U. L. REV. 1304 (1999) (critiquing several recent scholarly proposals to resolve the federalism dilemma by imposing a due deliberation model upon Congress).
12. See A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court's New "On the Record" Constitutional Review of Federal Statutes, 86 CORNELL L. REV. 328 (2001); William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 STAN. L. REV. 87 (2001); Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80 (2001); see also Frank B. Cross, Realism About Federalism, 74 N.Y.U. L. REV. 1304 (1999) (critiquing several recent scholarly proposals to resolve the federalism dilemma by imposing a due deliberation model upon Congress).
13. See A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court's New "On the Record" Constitutional Review of Federal Statutes, 86 CORNELL L. REV. 328 (2001); William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 STAN. L. REV. 87 (2001); Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80 (2001); see also Frank B. Cross, Realism About Federalism, 74 N.Y.U. L. REV. 1304 (1999) (critiquing several recent scholarly proposals to resolve the federalism dilemma by imposing a due deliberation model upon Congress).
14. See A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court's New "On the Record" Constitutional Review of Federal Statutes, 86 CORNELL L. REV. 328 (2001); William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 STAN. L. REV. 87 (2001); Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80 (2001); see also Frank B. Cross, Realism About Federalism, 74 N.Y.U. L. REV. 1304 (1999) (critiquing several recent scholarly proposals to resolve the federalism dilemma by imposing a due deliberation model upon Congress).
15. We rely upon the identification and categorization of these models in DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE 118-31 (1991). For a very helpful recent, exhaustive discussion of these models and possibly related judicial techniques, see Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. & MARY L. REV. 1575 (2001).
16. We rely upon the identification and categorization of these models in DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE 118-31 (1991). For a very helpful recent, exhaustive discussion of these models and possibly related judicial techniques, see Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. & MARY L. REV. 1575 (2001).
17. Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
18. See 5 U.S.C. § 706(2)(A) (1994).
19. See id. § 706(2)(E).
20. Hans A. Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197 (1976).
21. Id. at 208.
22. By way of illustration, Linde hypothesized an Oregon bill that imposed a weight-per-axle limit on trucks in the interest of highway safety and maintenance, but that allowed a higher limit for log trucks. The exemption would be adopted not because it promoted highway safety or maintenance, but because the legislature did not wish to promote those goals in a limitless way that would hamper an important industry. Is this statutory package "irrational," and therefore unconstitutional? Linde thought the inquiry silly as formulated, for such a conclusion "means to deny the legitimacy of the government's policy choice, not its rationality." Id. "[I]n the end, the constitutional question will be whether the aim of the law is out of bounds, not whether it will miss its target - a question of legitimacy, not of rationality." Id. at 212.
23. In a representative passage, Linde wrote: Rational lawmaking, if we take the formula seriously, would oblige this collective body to reach and to articulate some agreement on a desired goal. It would oblige legislators to inform themselves in some fashion about the existing conditions on which the proposed law would operate, and about the likelihood that the proposal would in fact further the intended purpose. In order to weigh the anticipated benefits for some against the burdens the law would impose on others, legislators must inform themselves also about those burdens. These demands on the legislative process imply others. The projections and assessments of conditions and consequences must presumably take some account of evidence, at least in committee sessions. A member who never attends the committee meetings should at least examine the record of evidence before casting a vote, or be told about it, and should certainly never vote by proxy. The committee must explain its factual and value premises to the full body. Surely there is no place for a vote on final passage by members who have never read even a summary of the bill, let alone a committee report or a resume of the factual documentation. In the forty-nine states which are less progressive than Nebraska [Linde is lecturing at the University of Nebraska!], the second house of the legislature could hardly substitute a wholly different version of the bill without repeating the process of inquiry. These kinds of demands are implicit in due process, if lawmakers are really bound to a rule that laws must be made as rational means toward some agreed purpose. Id. at 223-24.
24. Linde acknowledged that judges may be reluctant to invalidate legislation on this ground, although he urged them to do so. In any event, that is a "problem[] of judicial review, and in our present theoretical excursion [that is] secondary to what the Constitution demands of lawmakers. We do not assume that a law has been constitutionally made merely because a court will not set it aside . . . ." Id. at 243.
25. See, e.g., Brannon P. Denning & Brooks R. Smith, Uneasy Riders: The Case for a Truth-in-Legislation Amendment, 1999 UTAH L. REV. 957; Robert F. Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. PITT. L. REV. 797 (1987).
26. See, e.g., Brannon P. Denning & Brooks R. Smith, Uneasy Riders: The Case for a Truth-in-Legislation Amendment, 1999 UTAH L. REV. 957; Robert F. Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. PITT. L. REV. 797 (1987).
27. See, e.g., Bernstein v. Comm'r of Pub. Safety, 351 N.W.2d 24, 25 (Minn. Ct. App. 1984).
28. See, e.g., Senate of Cal. v. Jones, 988 P.2d 1089 (Cal. 1999); Fine v. Firestone, 448 So. 2d 984 (Fla. 1984).
29. 395 U.S. 486 (1969).
30. 462 U.S. 919 (1983).
31. 524 U.S. 417 (1998); cf. United States v. Munoz-Flores, 495 U.S. 385 (1990) (finding justiciable the question of whether appropriations legislation originated in the House of Representatives, as required by U.S. CONST. art. I, § 7, cl. 1).
32. See Laurence H. Tribe, Structural Due Process, 10 HARV. C.R.-C.L. L. REV. 269, 269 (1975).
33. Id. (emphasis omitted).
34. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1029-43 (3d ed. 2000).
35. 426 U.S. 88 (1976).
36. See Sugarman v. Dougall, 413 U.S. 634 (1973).
37. Bolling v. Sharpe, 347 U.S. 497 (1954).
38. See, e.g., Mathews v. Diaz, 426 U.S. 67 (1976).
39. Indeed, when President Ford reinstated the exclusionary rule by executive order, the lower courts upheld its constitutionality, and the Supreme Court denied review. See Mow Sun Wong v. Hampton, 626 F.2d 739 (9th Cir. 1980), cert. denied sub nom. Lum v. Campbell, 450 U.S. 959 (1981).
40. 357 U.S. 116 (1958).
41. Despite President Eisenhower's urgent call for congressional action explicitly authorizing the State Department to act in this fashion, no legislation was ever enacted. See Daniel A. Farber, National Security, the Right To Travel, and the Court, 1981 SUP. CT. REV. 263, 278-81.
42. On such canons, see William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007 (1989); William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992); and Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 407 (1989).
43. On such canons, see William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007 (1989); William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992); and Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 407 (1989).
44. On such canons, see William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007 (1989); William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992); and Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 407 (1989).
45. See, e.g., NLRB v. Catholic Bishop, 440 U.S. 490 (1979); Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997).
46. See, e.g., NLRB v. Catholic Bishop, 440 U.S. 490 (1979); Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997).
47. See, e.g., NLRB v. Catholic Bishop, 440 U.S. 490 (1979); Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997).
48. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).
49. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001); Mistretta v. United States, 488 U.S. 361 (1989); Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315 (2000).
50. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001); Mistretta v. United States, 488 U.S. 361 (1989); Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315 (2000).
51. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001); Mistretta v. United States, 488 U.S. 361 (1989); Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315 (2000).
52. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
53. See Lawrence Gene Sager, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest City Enterprises, Inc., 91 HARV. L. REV. 1373, 1411-18 (1978).
54. Id. at 1417.
55. See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 MINN. L. REV. 31 (1996) (examining the relationship between the plenary power over immigration and the plenary power over Indian affairs).
56. See Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381 (1993); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 (1990).
57. See Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381 (1993); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 (1990).
58. Terrance Sandalow, Judicial Protection of Minorities, 75 MICH. L. REV. 1162, 1188 (1977). For more recent commentary proposing a somewhat similar model for judicial review of congressional intrusions upon the values of federalism, see Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEX. L. REV. 795 (1996); and Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle, 111 HARV. L. REV. 2180 (1998).
59. Terrance Sandalow, Judicial Protection of Minorities, 75 MICH. L. REV. 1162, 1188 (1977). For more recent commentary proposing a somewhat similar model for judicial review of congressional intrusions upon the values of federalism, see Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEX. L. REV. 795 (1996); and Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle, 111 HARV. L. REV. 2180 (1998).
60. Terrance Sandalow, Judicial Protection of Minorities, 75 MICH. L. REV. 1162, 1188 (1977). For more recent commentary proposing a somewhat similar model for judicial review of congressional intrusions upon the values of federalism, see Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEX. L. REV. 795 (1996); and Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle, 111 HARV. L. REV. 2180 (1998).
61. The most obvious examples arise from his dissenting opinions in two cases. In Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), the Court upheld a congressional plan of distributing assets to the descendants of the Delaware Nation. Justice Stevens dissented on the ground that Congress had excluded some descendants by sheer oversight. Stevens explicitly invoked the term "due process of lawmaking" in his dissent. Id. at 98 (Stevens, J., dissenting). More vividly, in Fullilove v. Klutznick, 448 U.S. 448 (1980), the Court upheld a federal statute requiring that at least ten percent of the federal funds for public works projects be set aside for minority business enterprises. Justice Stevens again dissented, finding nothing in the legislative history to justify the statute's approach of assuming that six subclasses of minorities (defined as "Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts") merited federal reparations or other special treatment, much less identical treatment. Id. at 535 (Stevens, J., dissenting). Unlike the other dissenters. Justice Stevens was "not convinced that the [Due Process Clause of the Fifth Amendment] contains an absolute prohibition against any statutory classification based on race." Id. at 548. He could not, however, countenance a legislative process that had not even noted that the statute was the first time in the nation's history that Congress "ha[d] created a broad legislative classification for entitlement to benefits based solely on racial characteristics." Id. at 549. He observed that on the House and Senate floors "only a handful of legislators spoke" on the matter and that "it is unrealistic to assume that a significant number of legislators read" a committee report that addressed the minority set-aside and was relied upon by the Court's majority. Id. at 550 & n.25. Justice Stevens concluded that the lack of due deliberation counted against the constitutionality of the measure. He stated: Although it is traditional for judges to accord the same presumption of regularity to the legislative process no matter how obvious it may be that a busy Congress has acted precipitately, I see no reason why the character of their procedures may not be considered relevant to the decision whether the legislative product has caused a deprivation of liberty or property without due process of law. Whenever Congress creates a classification that would be subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment if it had been fashioned by a state legislature, it seems to me that judicial review should include a consideration of the procedural character of the decisionmaking process. A holding that the classification was not adequately preceded by a consideration of less drastic alternatives or adequately explained by a statement of legislative purpose would be far less intrusive than a final determination [of unconstitutionality]. . . . [T]here can be no separation-of-powers objection to a more tentative holding of unconstitutionality based on a failure to follow procedures that guarantee the kind of deliberation that a fundamental constitutional issue of this kind obviously merits. Id. at 550-52 (citations omitted).
62. A statute that takes gender into account on its face is subject to an intermediate sort of scrutiny, under which the statute is unconstitutional unless it serves important government interests and is substantially related to the achievement of those objectives. Craig v. Boren, 429 U.S. 190, 197 (1976). In at least two cases, the Court has said that congressional procedure and deliberation influenced the constitutional outcome. In upholding the exclusion of women from selective service, the Court stressed that Congress had "carefully considered and debated" the alternatives. Rostker v. Goldberg, 453 U.S. 57, 70 (1981). In contrast, in striking down a federal Social Security measure favoring widows over widowers, a plurality of the Court acknowledged that a compensatory purpose of protecting widows, who may well be more economically disadvantaged than widowers, might have supported the statute, but noted that there was no indication of any "reasoned congressional judgment" along those lines. Califano v. Goldfarb, 430 U.S. 199, 214 (1977).
63. One might think of these as the "undue misdeliberation" cases. In United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the Court invalidated an exclusion from the food-stamp program of households containing unrelated persons. The Court purported to base its holding on the lack of any rational connection between the distinction drawn (households of related persons versus those containing one or more unrelated persons) and the statute's stated purposes of alleviating hunger. In fact, the legislative history revealed that the exclusion was designed to prevent "hippie communes" from taking advantage of the food-stamp program, and thus the statute was not "irrational" - there was a rational relationship between a legislative purpose and the means chosen to effectuate that purpose. But the Court ruled that such a purpose was inadmissible because it was illegitimate: "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Id. at 534. To the same effect is City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), involving a city's attempt to "zone out" a group home for the mentally disabled. Most recently and most visibly, in Romer v. Evans, 517 U.S. 620 (1996), the Court invalidated a Colorado constitutional amendment, adopted by the voters, which, though ambiguous, seemed designed to make gays and lesbians second-class citizens by repealing local ordinances protecting them against discrimination and largely preventing the readoption of similar measures.
64. The Court has also alluded to something like a deliberation model in a few recent cases outside the federalism context. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994).
65. See, e.g., Jesse H. Choper & John C. Yoo, The Scope of the Commerce Clause After Morrison, 25 OKLA. CITY U. L. REV. 843 (2000); Eskridge & Frickey, supra note 33; Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000).
66. See, e.g., Jesse H. Choper & John C. Yoo, The Scope of the Commerce Clause After Morrison, 25 OKLA. CITY U. L. REV. 843 (2000); Eskridge & Frickey, supra note 33; Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000).
67. See, e.g., Jesse H. Choper & John C. Yoo, The Scope of the Commerce Clause After Morrison, 25 OKLA. CITY U. L. REV. 843 (2000); Eskridge & Frickey, supra note 33; Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000).
68. U.S. CONST. art. I, § 8, cl. 3.
69. 402 U.S. 146 (1971).
70. 379 U.S. 294 (1964).
71. 317 U.S. 111 (1942).
72. 483 U.S. 203 (1987).
73. 469 U.S. 528 (1985).
74. 426 U.S. 833 (1976).
75. Id. at 852.
76. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (emphasis added).
77. On the potential interpretive effects of canons (tiebreakers, presumptions, and clear-statement rules), see Eskridge & Frickey, supra note 33.
78. Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
79. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Rehnquist, J.).
80. 501 U.S. 452 (1991).
81. See New York v. United States, 505 U.S. 144 (1992). In Printz v. United States, 521 U.S. 898 (1997), the Court held that state executive officials were likewise immune from federal commandeering.
82. 514 U.S. 549 (1995).
83. 18 U.S.C. § 922(q) (1994).
84. The majority acknowledged, Lopez, 514 U.S. at 563-68, and Justice Breyer in dissent explained at length, id. at 618-25 (Breyer, J., dissenting), that a causal connection between the statute and interstate commerce could be made. In brief, guns near schools lead to violence near schools; school violence causes economic loss spread throughout the economy through insurance; school violence affects where people choose to live, including those moving across state lines; school violence undercuts educational performance, hurting the economy; and so on. The majority refused to "pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id. at 567 (majority opinion).
85. Id. at 563. For speculations on the role of legislative findings in the aftermath of Lopez, see Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 CASE W. RES. L. REV. 695 (1996).
86. 517 U.S. 44 (1996).
87. Nor may Congress use the commerce power to subject states to damages suits in state courts for alleged breach of federal statutory commands. Alden v. Maine, 527 U.S. 706 (1999).
88. 521 U.S. 507 (1997).
89. 42 U.S.C. §§ 2000bb to 2000bb-4 (1994).
90. See Employment Div. v. Smith, 494 U.S. 872 (1990).
91. See Boerne, 521 U.S. at 530-36.
92. Id.
93. 527 U.S. 627 (1999).
94. Id. at 645 (quoting Boerne, 521 U.S. at 526).
95. Id. at 655-60 (Stevens, J., dissenting).
96. Id. at 664-65.
97. 528 U.S. 62 (2000).
98. 29 U.S.C. §§ 621-634 (1994).
99. The theory is that taking age into account is ordinarily a rational act for government decisionmakers that is rarely rooted in animus. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976).
100. Kimel, 528 U.S. at 89.
101. 529 U.S. 598 (2000).
102. 42 U.S.C. § 13981 (1994).
103. See Morrison, 529 U.S. at 619-27.
104. Id. at 614.
105. Id. at 615 (quoting H.R. CONF. REP. NO. 103-711, at 385 (1994)).
106. See id.
107. The majority squarely rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregated effect on interstate commerce." Id. at 617 (emphasis added).
108. 531 U.S. 356 (2001).
109. 42 U.S.C. §§ 12111-12117 (1994).
110. Garrett, 531 U.S. at 370.
111. See id.
112. See id. at 369-70.
113. See id. at 377, 389-424 (Breyer, J., dissenting).
114. Id. at 370 (majority opinion).
115. Id. at 371.
116. See id.
117. Id. at 372.
118. Id. at 373 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)).
119. Id. at 374.
120. Id. at 382 (Breyer, J., dissenting).
121. Id. at 379-80.
122. Id. at 380.
123. Id.
124. Id. at 384 (citation omitted).
125. Id. at 388-89.
126. As we explain in this Part, the empirically unsound and overly intrusive manner in which the Court has imposed its due process of lawmaking model has caused one of us to abandon his earlier speculation, see Frickey, supra note 65, that legislative findings of fact and other careful congressional processes might lead to a productive judicial-congressional dialogue on the nature and limits of the constitutional power of both bodies. Of course, in the hands of a different set of Justices, things might have worked out differently.
127. See FARBER & FRICKEY, supra note 8.
128. It was precisely the fear that judges and legal scholars might too easily embrace axiomatic formal theory about politics that led Dan Farber and one of us to undertake the project that led to Law and Public Choice. See id. 109. See United States v. Morrison, 529 U.S. 598, 653 (2000) (Souter, J., dissenting).
129. One need not be a rocket scientist, or even a political scientist, to have such intuitions. For example, many legal commentators "have noted" that Lopez "invalidated a pointless federal crime enacted for symbolic or political reasons." Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011, 1049 & n.158 (2000).
130. See Herbert Asher & Mike Barr, Popular Support for Congress and Its Members, in CONGRESS, THE PRESS, AND THE PUBLIC 15 (Thomas E. Mann & Norman J. Ornstein eds., 1994).
131. For example, Bill Eskridge's study of instances in which Congress has overridden Supreme Court decisions by statute found that states were among the most successful petitioners for such congressional action. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 348-49 (1991).
132. See, e.g., Symposium, Positive Political Theory and Public Law, 80 GEO. L.J. 457 (1992).
133. See, e.g., Kenneth A. Shepsle & Barry R. Weingast, Positive Theories of Congressional Institutions, in POSITIVE THEORIES OF CONGRESSIONAL INSTITUTIONS 5 (Kenneth A. Shepsle & Barry R. Weingast eds., 1995).
134. See, e.g., H.R. REP. NO. 106-577 (2000). The report states: Congress adopts the provisions of this title -(1) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they shall be considered as part of the rules of each House, or of that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are inconsistent therewith; and (2) with full recognition of the constitutional right of either House to change those rules (so far as they relate to that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House. Id. at 23-24.
135. Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 644 (1999).
136. RULES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 106-320, R. XIII, at 586 (2001) [hereinafter RULES OF THE HOUSE]; STANDING RULES OF THE SENATE, S. DOC. NO. 106-15, R. XXVI, at 39 (2000) [hereinafter STANDING RULES OF THE SENATE].
137. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON: DELIBERATIVE DEMOCRACY AND AMERICAN NATIONAL GOVERNMENT (1994); JOHN W. KINGDON, CONGRESSMEN'S VOTING DECISIONS (1973); DONALD R. MATTHEWS & JAMES A. STIMSON, YEAS AND NAYS: NORMAL DECISION-MAKING IN THE U.S. HOUSE OF REPRESENTATIVES (1975).
138. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON: DELIBERATIVE DEMOCRACY AND AMERICAN NATIONAL GOVERNMENT (1994); JOHN W. KINGDON, CONGRESSMEN'S VOTING DECISIONS (1973); DONALD R. MATTHEWS & JAMES A. STIMSON, YEAS AND NAYS: NORMAL DECISION-MAKING IN THE U.S. HOUSE OF REPRESENTATIVES (1975).
139. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON: DELIBERATIVE DEMOCRACY AND AMERICAN NATIONAL GOVERNMENT (1994); JOHN W. KINGDON, CONGRESSMEN'S VOTING DECISIONS (1973); DONALD R. MATTHEWS & JAMES A. STIMSON, YEAS AND NAYS: NORMAL DECISION-MAKING IN THE U.S. HOUSE OF REPRESENTATIVES (1975).
140. TASK FORCE ON THE RIGHTS AND EMPOWERMENT OF AMERICANS WITH DISABILITIES, FROM ADA TO EMPOWERMENT (1990), cited in Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 372 (2001).
141. Garrett, 531 U.S. at 380-82 (Breyer, J., dissenting).
142. 527 U.S. at 643-44.
143. See sources cited supra note 7.
144. See ROGER H. DAVIDSON & WALTER J. OLESZEK, CONGRESS AGAINST ITSELF 1-17 (1977).
145. RULES OF THE HOUSE, supra note 117, R. XIII, cl. 3, at 592-602; STANDING RULES OF THE SENATE, supra note 117, R. XXVI, cls. 10-12, at 46-49.
146. RULES OF THE HOUSE, supra note 117, R. XIII, cl. 3, at 593-97.
147. STANDING RULES OF THE SENATE, supra note 117, R. XXVI, cl. 11, at 48.
148. RULES OF THE HOUSE, supra note 117, R. XIII, cl. 3, at 599-602.
149. Id. R. XIII, cl. 4, at 602.
150. Id. R. XIII, cl. 4, at 603.
151. STANDING RULES OF THE SENATE, supra note 117, R. XVII, cl. 5, at 17.
152. RULES OF THE HOUSE, supra note 117, R. X, cl. 2, at 461-62.
153. Id. R. X, cl. 2, at 463.
154. STANDING RULES OF THE SENATE, supra note 117, R. XXV, cl. 1, at 34.
155. Id. R. XXVII, at 49.
156. 2 U.S.C. § 166(d)(1) (1994).
157. Id. § 166(d)(4).
158. S. REP. NO. 106-75, at 25, 31, 36 (1999).
159. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88 (2000).
160. Id. at 89.
161. Perhaps the most explicit indications come from Kimel, where the Court complained: Our examination of the ADEA's legislative record confirms that Congress' 1974 extension of the Act to the States was an unwarranted response to a perhaps inconsequential problem. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. . . . . . . . . . . [T]he United States' argument that Congress found substantial age discrimination in the private sector . . . is beside the point. Congress made no such findings with respect to the States. Although we also have doubts whether the findings Congress did make with respect to the private sector could be extrapolated to support a finding of unconstitutional age discrimination in the public sector, it is sufficient for these cases to note that Congress failed to identify a widespread pattern of age discrimination by the States. . . . A review of the ADEA's legislative record as a whole, then, reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Although that lack of support is not determinative of the § 5 inquiry [citing Boerne], Congress' failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. Id. at 89-91 (citations omitted).
162. Id. at 89.
163. YEHEZKEL DROR, PUBLIC POLICYMAKING REEXAMINED (1968).
164. THEODORE J. LOWI, THE END OF LIBERALISM 128-57 (1969).
165. Id. at 297.
166. Id. at 297-314.
167. See James Q. Wilson, Juridical Democracy Versus American Democracy, 23 PS: POL. SCI. & POL. 570, 571 (1990).
168. See Joshua Cohen, The Economic Basis of Deliberative Democracy, SOC. PHIL. & POL'Y, Spring 1989, at 25, 32-33.
169. Id. at 33.
170. See CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 244 (1993) (citations omitted).
171. See JANE J. MANSBRIDGE, BEYOND ADVERSARY DEMOCRACY 4 (1980); Adam Przeworski, Deliberation and Ideological Domination, in DELIBERATIVE DEMOCRACY 140, 154-55 (Jon Elster ed., 1998).
172. See JANE J. MANSBRIDGE, BEYOND ADVERSARY DEMOCRACY 4 (1980); Adam Przeworski, Deliberation and Ideological Domination, in DELIBERATIVE DEMOCRACY 140, 154-55 (Jon Elster ed., 1998).
173. See STEVEN S. SMITH, CALL TO ORDER: FLOOR POLITICS IN THE HOUSE AND SENATE 237-40 (1989).
174. See U.S. CONST. art. I, § 5, cl. 2.
175. See supra Section III.D.
176. See supra text accompanying notes 30-31 (discussing Hampton v. Mow Sun Wong and Kent v. Dulles).
177. See supra text accompanying notes 40-41 (discussing congressional power over immigration and Indian affairs).
178. See supra text accompanying note 34.
179. See supra text accompanying notes 47-59.
180. See Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991).
181. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985).
182. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 15-19 (1981).
183. See Eskridge & Frickey, supra note 33, at 638-40.
184. Frickey, supra note 41, at 416 (citations omitted).
185. See supra note 87 and accompanying text.
186. To be sure, one can imagine factual issues arising in the next wave of Commerce Clause cases. Hypothetically, assume that Congress enacts legislation requiring all lemonade stands with annual revenues of ten dollars or more that are operated by underage entrepreneurs to use beet sugar rather than cane sugar. There are plenty of transactions upon which to hang the legislative jurisdictional hook, but the overall scheme, even when all such operations are aggregated, would have a minuscule effect upon interstate commerce. After all, in contrast to Wickard v. Filburn, 317 U.S. 111 (1942), in which there clearly existed an integrated, interstate wheat market that would be dramatically affected by the personal consumption of thousands of wheat producers, no such widespread, integrated, interstate market seems affected by the hypothetical statute. If one doubted the important effects of the wheat regulation statute, explicit congressional factual findings could explain Congress's rationale and provide all interested parties - farmers fighting for or against the bill, public interest organizations, and lawyers and judges in any later litigation - a sense of what Congress had institutionally committed itself to endorsing. Consider how ludicrous such findings would appear in our hypothetical "lemonade reform" act. We would trust the congressional process to flush out such measures, which suggests that, in certain circumstances, factual findings or a clear-statement requirement can be useful judicial tools in assisting good congressional policymaking. If Congress enacts silly legislation justified by ridiculous findings, what then? It seems odd for the Court, as it has done, to suggest that Congress should be faulted as a matter of fact. Instead, the Court, if honest, faces a purely substantive question: Should it defer to such a poor congressional rationale, or should it reject it as beyond congressional power? The Court has already recognized this in Morrison, and we would expect it to move away from factual quarrels and toward more substantive standards in other areas as well.
187. See United States v. Lopez, 514 U.S. 549, 604-09 (1995) (Souter, J., dissenting).
188. See supra text accompanying notes 72, 98.
189. See, e.g., William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509 (1998) (reviewing ANTONIN SCALIA, A MATTER OF INTERPRETATION (1997)); Philip P. Frickey, Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger, 84 MINN. L. REV. 199 (1999).
190. See, e.g., William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509 (1998) (reviewing ANTONIN SCALIA, A MATTER OF INTERPRETATION (1997)); Philip P. Frickey, Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger, 84 MINN. L. REV. 199 (1999).
191. See, e.g., William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509 (1998) (reviewing ANTONIN SCALIA, A MATTER OF INTERPRETATION (1997)); Philip P. Frickey, Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger, 84 MINN. L. REV. 199 (1999).
192. U.S. CONST. art. I, § 5, cl. 2.
193. See INS v. Chadha, 462 U.S. 919 (1983).
194. Cf. United States v. Munoz-Flores, 495 U.S. 385 (1990) (holding that a special assessment statute is not a "Bill for raising Revenue" and consequently its origination in the Senate does not violate the Origination Clause).
195. See supra text accompanying notes 12-22.
196. See, e.g., Bryant & Simeone, supra note 7, at 376-83.
197. See supra text accompanying notes 33-36.
198. See supra text accompanying notes 158-160.
199. For a recent examination, see Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 HARV. J. ON LEGIS. 369 (1999).
200. See Frickey, supra note 167, at 205.
201. See, e.g., Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting) ("I thought we had adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies."); SCALIA, supra note 167, at 14-37.
202. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990).
203. See EPSTEIN & KNIGHT, supra note 6; MALTZMANN ET AL., supra note 6.
204. See Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 DUKE L.J. 1277 (2001).
205. Id. at 1317-30.
206. Id. at 1311.
207. See Buzbee & Schapiro, supra note 7, at 158-59; Colker & Brudney, supra note 7, at 141-43.
208. Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 DUKE L.J. 1169, 1211 (2001).
209. See supra text accompanying notes 106-114 (urging courts to avoid adopting any unitary, formal model of the political process as an easy way to develop a theory of judicial review).