Framework legislation and federalism

Notre Dame Law Review

Volumn 83, Issue 4, 2008, Pages 1495-1539

  Garrett, Elizabeth ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 51149118227     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (188)

1. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001).
2. Id. at 1321.
3. See id. at 1328-32.
4. See id. at 1357-67.
5. Id. passim (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).
6. See U.S. CONST. art. I, § 5, cl. 2.
7. The constitutional procedures relating to separation of powers that Clark relies on to protect federalism actually work to entrench the status quo, rather than to target principles of federalism. If the status quo already includes laws that are detrimental to strong state governments, then the "finely wrought and exhaustively considered" procedures will make it more difficult to repeal those statutes and reach a more balanced arrangement. To put it another way, the status quo that the constitutional procedures protected 200 years ago is a very different one in terms of federalism than the status quo protected in the twenty-first century. See Carlos Manuel Vázquez, The Separation of Powers as a Safeguard of Nationalism, 83 NOTRE DAME L. REV. 1601, 1606-07 (2008) (making a similar point).
8. See Elizabeth Garrett, The Purposes of Framework Legislation, 14 J. CONTEMP. LEGAL ISSUES 717, 733-64 (2005).
9. Pub. L. No. 104-4, 109 Stat. 48 (codified in scattered sections of 2 U.S.C.).
10. See generally Elizabeth Garrett, Conditions for Framework Legislation, in THE LEAST EXAMINED BRANCH 294, 297-318 (Richard W. Bauman & Tsvi Kahana eds., 2006) [hereinafter Garrett, Conditions] (specifying conditions that Congress must consider before enacting framework laws); Garrett, supra note 8, at 724 (identifying specific examples of framework laws and describing the purposes served by framework legislation).
11. See Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L. & POL., 345, 346 (2003) (referring to framework laws as "statutized rules").
12. See infra notes 71-76 and accompanying text.
13. See 109 Stat. at 50-64.
14. See id. at 64-67.
15. Title II may have played a role in Congress' decision to use a framework law, rather than internal rules, to effect the changes in legislative procedures. To the extent that lawmakers viewed regulatory reform as part of a package with legislative reform and wanted to adopt both parts of the deal at the same time, then a framework law was the only route to enactment possible because regulatory reform required a vehicle with the force of law. See Garrett, Conditions, supra note 10, at 312-17 (describing the need to enact all parts of a legislative bargain simultaneously as a reason for the use of the statutory form).
16. See, e.g., CONG. BUDGET OFFICE, A REVIEW OF CBO's ACTIVITIES IN 2006 UNDER THE UNFUNDED MANDATES REFORM ACT (2007) [hereinafter CBO, 2006 REVIEW], available at http://www.cbo.gov/ftpdocs/79xx/doc7982/04-03-UMRA.pdf; CONG. BUDGET OFFICE, A REVIEW OF CBO's ACTIVITIES UNDER THE UNFUNDED MANDATES REFORM ACT, 1996 TO 2005 (2006) [hereinafter CBO, TEN-YEAR REVIEW], available at http://www.cbo.gov/ftpdocs/71xx/doc7111/ 03-31-UMRA.pdf.
17. See, e.g., U.S. GEN. ACCOUNTING OFFICE, UNFUNDED MANDATES: ANALYSIS OF REFORM ACT COVERAGE (2004) [hereinafter GAO, COVERAGE], available at http://www.gao.gov/new.items/d04637.pdf; U.S. GEN. ACCOUNTING OFFICE, UNFUNDED MANDATES: REFORM ACT HAS HAD LITTLE EFFECT ON AGENCIES' RULEMAKING ACTIONS (1998) [hereinafter GAO, LITTLE EFFECT], available at http://www.gao.gov/archive/1998/gg98030.pdf.
18. See 2 U.S.C. § 658d (2000).
19. See H.R. Con. Res. 95, 109th Cong. § 403, 119 Stat. 3633, 3652 (2005). In the fiscal year 2008 concurrent budget resolution, the Senate, now controlled by Democrats, decided to eliminate the supermajority voting requirement, which was originally to remain in effect through fiscal year 2010. See infra note 49 and accompanying text. This change should not have been a surprise: Senate Democrats had vehemently and successfully resisted a supermajority voting requirement when UMRA was originally enacted. See Timothy J. Conlan, James D. Riggle & Donna E. Schwartz, Deregulating Federalism? The Politics of Mandate Reform in the 104th Congress, PUBLIUS, Summer 1995, at 23, 32.
20. Unfunded Mandate Reform Act of 1995 § 421, 2 U.S.C. § 658(5) (2000). UMRA also applies to mandates affecting tribal governments, but that aspect of the Act is not relevant to this analysis. See 2 U.S.C. § 1501.
21. See 2 U.S.C. § 658(7)(A).
22. See infra text accompanying notes 139-41.
23. Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended in scattered sections of 20 U.S.C.).
24. See GAO, COVERAGE, supra note 17, at 23-24.
25. See 2 U.S.C. § 658a.
26. See U.S. GOV'T ACCOUNTABILITY OFFICE, UNFUNDED MANDATES: VIEWS VARY ABOUT REFORM ACT'S STRENGTHS, WEAKNESSES, AND OPTIONS FOR IMPROVEMENT 10 (2005) [hereinafter GAO, VIEWS VARY], available at http://www.gao.gov/new.items/ d05454.pdf.
27. See 2 U.S.C. § 658d(c)(1).
28. See CBO, TEN-YEAR REVIEW, supra note 16, at 59 n.2.
29. See 2 U.S.C. § 658b(b).
30. See id. §§ 658b(a), (c)-(d), (f), 658c(a)-(b).
31. The threshold in 2006 was $64 million. See CBO, 2006 REVIEW, supra note 16, at 2.
32. See 2 U.S.C. § 658c(a)(2).
33. Id. § 658(3)(A)(i).
34. See id. § 658c(a)(2)(c), (b)(2)(B).
35. See CBO, TEN-YEAR REVIEW, supra note 16, at 57 (quoting 2 U.S.C. § 685c(d)).
36. Id. at 2.
37. See 2 U.S.C. § 658d(a)(1).
38. See id. § 658d(a)(2).
39. See id. § 658d(a)(2)(A).
40. See id. § 658d(a)(2)(B).
41. See Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113, 1157-60 (1997).
42. See 2 U.S.C. § 658d(a)(2)(B)(iii).
43. See id.
44. See CBO, TEN-YEAR REVIEW, supra note 16, at 5.
45. 2 U.S.C. § 658e.
46. H.R. Con. Res. 95, 109th Cong. § 403, 119 Stat. 3633, 3652 (2005).
47. See GAO, COVERAGE, supra note 17, at 7.
48. CBO, TEN-YEAR REVIEW, supra note 16, at 5.
49. See S. Con. Res. 21, 110th Cong. § 205 (2007). The version that passed the Senate initially extended the sixty vote supermajority requirement until 2017, but the conference report changed the treatment of UMRA points of order to return to the simple majority requirement. See H.R. REP. No. 110-153, at 16 (2007) (Conf. Rep.).
50. For descriptions of the modern congressional budget process, see WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION 446-85 (4th ed. 2007); ALLEN SCHICK, THE FEDERAL BUDGET 118-61 (3d ed. 2007). The federal budget framework is governed primarily by 2 U.S.C. §§ 601-688, 900-907d, the product of several laws passed in the last three decades, including the Congressional Budget and Impoundment Control Act of 1974, Pub L. No. 93-344, 88 Stat. 297, the Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038, and the Budget Enforcement Act of 1990, Pub. L. No. 101-508, tit. XIII, 104 Stat. 1388-573.
51. See SCHICK supra note 49, at 295.
52. See AARON WILDAVSKY & NAOMI CAIDEN, THE NEW POLITICS OF THE BUDGETARY PROCESS 148-49 (3d ed. 1997).
53. See GAO, COVERAGE, supra note 17, at 16-17.
54. See William G. Dauster, The Congressional Budget Process, in FISCAL CHALLENGES 4, 26-34 (Elizabeth Garrett, Elizabeth A. Graddy & Howell E. Jackson eds., 2008) (discussing reconciliation and other procedures affecting budget legislation).
55. See, e.g., GREGORY J. WAWRO & ERIC SCHICKLER, FILIBUSTER 27 (2006) (stating that of ninety major laws enacted between 1975 and 1994 only ten passed with fewer than sixty senators voting in favor, and half of those were budget bills).
56. See, e.g., Dauster, supra note 53, at 19.
57. See Garrett, supra note 8, at 733-63.
58. See id. at 733.
59. Cf. Rodney E. Hero, The U.S. Congress and American Federalism: Are "Subnational" Governments Protected?, 42 W. POL. Q. 93, 95 (1989) (noting that "it is not clear that citizens understand, much less attach particularly high value to" various principles of government, including federalism).
60. See Theresa A. Gullo & Janet M. Kelly, Federal Unfunded Mandate Reform: A First-Year Retrospective, 58 PUB. ADMIN. REV. 379, 384-85 (1998).
61. Allan Freedman, Unfunded Mandates Reform Act: A Partial "Contract" Success, 56 CONG. Q. WKLY. REP. 2318, 2318 (1998) (internal quotation marks omitted).
62. Pub. L. No. 105-277, tit. XI, §§ 1101-04, 112 Stat. 2681-719 to 2681-726 (1998) (codified as amended at 47 U.S.C.A. § 151 note (West Supp. 2007)).
63. See Theresa Gullo, History and Evaluation of the Unfunded Mandates Reform Act, 57 NAT'L TAX J. 559, 567 (2004).
64. 2 U.S.C. § 658(3) (2000).
65. CONG. BUDGET OFFICE, MANDATES STATEMENT: H.R. 3529 INTERNET TAX FREEDOM ACT OF 1998, at 4 (1998), available at http://www.cbo.gov/ ftpdocs/6xx/doc608/hr3529-m.pdf.
66. Gullo, supra note 63, at 568.
67. See 151 CONG. REC. S11,547 (daily ed. Oct. 19, 2005); 151 CONG. REC. S11,512 (daily ed. Oct. 17, 2005).
68. Perhaps not surprisingly, both National League of Cities v. Usery, 426 U.S. 833, 835-36 (1976), and Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 528 (1985), deal with federal minimum wage statutes.
69. See 151 CONG. REC. 811,547-48 (daily ed. Oct. 19, 2005).
70. Senate Uses Minimum Wage Increase to Push Anti-Regulatory Agenda, OMB WATCH, Nov. 1, 2005, http://www.ombwatch.org/article/articleview/ 3151/1/326.
71. See DAVID ARNOLD & JEREMY PLANT, PUBLIC OFFICIAL ASSOCIATIONS AND STATE AND LOCAL GOVERNMENT 1-14 (1994).
72. Id. at 15 n.1.
73. PRICE WATERHOUSE, IMPACT OF UNFUNDED FEDERAL MANDATES ON U.S. CITIES 4 (1993) (funded by the United States Conference of Mayors).
74. See Melissa Romine, Politics, the Environment, and Regulatory Reform at the Environmental Protection Agency, 6 ENVTL. LAW 1, 32-34 (1999).
75. See Gullo & Kelly, supra note 60, at 380.
76. Conlan, Riggle & Schwartz, supra note 19, at 27.
77. CONTRACT WITH AMERICA 7 (Ed Gillespie & Bob Schellhas eds., 1994).
78. See Job Creation and Wage Enhancement Act, H.R. 9, 104th Cong., tit. X, §§ 10001-10507 (1995).
79. See 141 CONG. REC. 1158 (1995).
80. See id. at 564.
81. See Gullo & Kelly, supra note 60, at 380.
82. This assumption is doubtful. As I will discuss in Part II.C, collective action problems beset Congress in this arena so even lawmakers committed to a view of federalism which is hostile to unfunded intergovernmental mandates might enact more than they would prefer. Recent experience also suggests that Republican national legislators are just as willing to preempt state and local government action and impose directives on the states as Democrats, albeit on different topics. National laws concerning education, marriage policy, reproductive decisions, and tax policy have been warmly received by Republicans in the same way that environmental regulations, minimum wage laws, and safety rules are by Democrats.
83. See GAO, VIEWS VARY, supra note 26, at 22; see also 145 CONG. REC. 1783 (1999) (statement of Rep. Condit) (stating that an "atmosphere of awareness" about intergovernmental mandates "has been fostered by the point of order procedure established under the Unfunded Mandates Reform Act").
84. See John Ferejohn, Accountability and Authority: Toward a Theory of Political Accountability, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION 131, 148-49 (Adam Przeworski, Susan C. Stokes & Bernard Manin eds. 1999).
85. See 2 U.S.C. §§ 658(b)-(c) (2000); Gullo, supra note 63, at 561-62 & n.3.
86. See Congressional Budget & Impoundment Control Act of 1974, Pub. L. No. 93-344, § 2, 88 Stat. 297, 298 (codified at 2 U.S.C. § 621 (2000)) (establishing the CBO "to assure effective congressional control over the budgetary process" and "to provide for the furnishing of information by the executive branch in a manner that will assist the Congress in discharging its duties").
87. Theresa A. Gullo, Estimating the Impact of Federal Legislation on State and Local Governments, in COPING WITH MANDATES 41, 46-47 (Michael Fix & Daphne Kenyon eds., 1990).
88. CONG. BUDGET OFFICE, COST ESTIMATE: S. 1789 PERSONAL DATA PRIVACY AND SECURITY ACT OF 2005, at 5 (2006), available at http://www.cbo.gov/ftpdocs/71xx/doc7161/s1789.pdf; see also S. REP. No. 104-308, at 43-44 (1996) (concerning the direct costs of an act applying federal workplace health and safety laws to all public workplaces and indicating that the mandate would affect thirty-one states or territories, 54,500 governmental units, and 29,000 local special districts).
89. Interestingly, UMRA may solve a problem facing interest groups that arises from the collective nature of Congress. Before UMRA, interest groups had to interact with a variety of substantive and appropriations committees, any of which could consider and recommend unfunded mandates. Now, groups can rely on the CBO mandate cost statement process to identify mandates and help them target their efforts, and they have one centralized entity with the responsibility for analyzing such mandates. Thus, lobbyists can use their time more efficiently, providing information to the CBO as it develops estimates and using the information the CBO produces to target particular committees considering significant intergovernmental mandates.
90. See GAO, VIEWS VARY, supra note 26, at 23.
91. Although the Advisory Commission on Intergovernmental Mandates was charged by UMRA to prepare a series of reports providing a broader vision of federal mandates, setting out their costs and benefits, and providing recommendations for change, the Commission was disbanded at the end of fiscal year 1996 before it could fulfill most of these objectives. See Gullo & Kelly, supra note 60, at 386.
92. See CBO, TEN-YEAR REVIEW, supra note 16, at 2-3.
93. See Garrett, supra note 41, at 1153-54 (describing the ineffectiveness of the State and Local Cost Estimate Act of 1981, the precursor to UMRA, because of absence of enforcement).
94. See Cheryl D. Block, Budget Gimmicks, in FISCAL CHALLENGES, supra note 54, at 39, 41.
95. This is a problem similar to that raised by advance appropriations, where Congress makes an appropriation in one fiscal year but scores the money against a cap in a future fiscal year. See SCHICK, supra note 50, at 75, 78.
96. Cf. Zoë Baird, State Empowerment After Garcia, 18 URB. LAW. 491, 504 (1986) (noting that "Congress faces a conflict of interest whenever its legislation presents an assertion of federal power the states argue infringes on their sovereignty").
97. See Clark, supra note 1, at 1372-93.
98. The congressional budget framework, particularly after the adoption of Gramm-Rudman-Hollings in the mid-1980s and the Budget Enforcement Act of 1990, see supra note 50, has made it more difficult, but certainly not impossible, for Congress to use deficit financing.
99. Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001, 1065 (1995).
100. See Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447, 1472-73 (1995) (explaining die prisoner's dilemma problem in the context of federalism generally).
101. But see David A. Dana, The Case for Unfunded Environmental Mandates, 69 S. CAL. L. REV. 1, 18-21 (1995) (arguing that voters should be able to get information about liability-shifting if the problem of unfunded mandates is serious enough).
102. See WAWRO & SCHICKLER, supra note 55, at 259-61.
103. See 152 CONG. REC. S1391 (daily ed. Feb. 16, 2006) (statement of Sen. Alexander). One wonders if he would have found it easier to get over his past had he been elected to a leadership position in the Senate; in 2006 he lost by one vote to Trent Lott (R-Miss.) in the election for minority whip. Adam Nossiter & David M. Herszenhorn, Mississippi's Lott to Leave Senate Seat Held Since '88, N.Y. TIMES, Nov. 27, 2007, at A20.
104. This figure is derived from the biographies of Congressmembers found in CONG. QUARTERLY, CQ's POLITICS IN AMERICA 2008: THE 110TH CONGRESS (Jackie Koszczuk & Martha Angle eds., 2007). I considered local government experience to be service as mayor, member of a city council, member of a school board, or county supervisor. State experience included state legislator, governor, lieutenant governor, attorney general, secretary of state, treasurer, tax commissioner, or other "cabinet level" state official. See also Hero, supra note 59, at 96 (finding moderate levels of support by members of Congress for principles of federalism, but finding differences across delegations and finding support affected by ideology and party).
105. Notable examples of politicians who have left national positions for state office are Jon Corzine of New Jersey, Bill Richardson of New Mexico, and Arch Alfred Moore, Jr. of West Virginia, all who became governors after service in Congress.
106. See GLEN S. KRUTZ, HITCHING A RIDE 32-35 (2001) (describing the use of omnibus bills to facilitate compromise).
107. Another mechanism that can disaggregate logrolls is the line item veto power or its close cousin, the enhanced rescission authority that had been provided to the President in a different framework law also growing out of the Contract with America. See Line Item Veto Act of 1996, Pub. L. No. 104-130, 110 Stat. 1200, invalidated by Clinton v. City of New York, 524 U.S. 417 (1998); see also Elizabeth Garrett, The Story of Clinton v. City of New York: Congress Can Take Care of Itself, in ADMINISTRATIVE LAW STORIES 47, 56-57 (Peter L. Strauss ed., 2005) (describing enhanced rescission).
108. See infra text accompanying notes 144-49.
109. For suggestions that such was the intent of the enacting Congress, see Angela Antonelli, Promises Unfulfilled: Unfunded Mandates Reform Act of 1995, REGULATION, Spring 1996, at 44-45; Comm. on Fed. Legislation, The Unfunded Mandates Reform Act of 1995, 50 REC. ASS'N BAR CITY N.Y. 669, 683 (1995).
110. See supra note 19 and accompanying text.
111. See supra note 49 and accompanying text.
112. See Clark, supra note 1, at 1371-72 (discussing the effect of the Seventeenth Amendment on the influence of states in the Senate but noting the continued key role that the Senate plays in the constitutional scheme of lawmaking).
113. See Conlan, Riggle & Schwartz, supra note 19, at 28-31.
114. See supra note 45 and accompanying text.
115. Rules in the Senate may require supermajority support to change rules. See infra note 153 and accompanying text.
116. See Gullo, supra note 63, at 562 (providing an estimate of the number of objections raised in the first eight years). As discussed above, the two points of order raised in the Senate were sustained and killed the amendments. See supra text accompanying notes 67-70. In addition, one point of order raised early in the House was sustained, although the point of order was probably improperly asserted. See Garrett, supra note 41, at 1144-45.
117. See GAO, COVERAGE, supra note 17, at 19 (" This is like a shoal out in the water. You know it is there, so you steer clear of it.'" (quoting a lobbyist for the National League of Cities)).
118. See infra text accompanying notes 156-81.
119. For an analysis of the budget framework as a way to shift power within Congress, see D. RODERICK KIEWIET & MATHEW D. MCCUBBINS, THE LOGIC OF DELEGATION (1991). See also McNollgast, The Political Economy of Law, in 2 HANDBOOK OF LAW AND ECONOMICS 1651, 1683 (A. Mitchell Polinsky & Steven Shavell eds., 2007) ("[M]uch of the legislative process involves attempts to mitigate the problem of delegation inside the legislature, principally to committees and party leaders.").
120. See KEITH KREHBIEL, INFORMATION AND LEGISLATIVE ORGANIZATION 75 (1992); Arthur Lupia & Mathew D. McCubbins, Who Controls? Information and the Structure of Legislative Decision Making, 19 LEGIS. STUD. Q. 361, 371 (1994).
121. Compare GLENN R. PARKER, CONGRESS AND THE RENT-SEEKING SOCIETY 74-81 (1996) (arguing that committees will consist of preference outliers because of distributional politics), and Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; or, Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. POL. ECON. 132, 148-52 (1988) (same), with GARY W. COX & MATHEW D. MCCUBBINS, LEGISLATIVE LEVIATHAN 176-210 (2d ed. 2007) (arguing that committees are largely representative but providing different views of the importance of the party structure in Congress), and KREHBIEL, supra note 120, at 105-50 (same). For further discussion on this topic, see COX & MCCUBBINS, supra, at 210 ("Self-selection... is only half the story. The other half, equally important, is the regulatory effort of each party's committee on committees."); KIEWIET & MCCUBBINS, supranote 119, at 100-31 (analyzing the makeup of the House Appropriations Committee and subcommittees and finding committees to be relatively representative).
122. See Comm. on Fed. Legislation, supra note 109, at 685 (finding this to be problematic because it "gives enormous discretion to the... CBO, which will provide the fiscal data that supports or refutes a challenge to a mandate").
123. Most CBO staff like Gullo are professionals who remain in their positions, notwithstanding partisan shifts in Congress; she began working at the CBO as a federal budget analyst in 1985 and has been the chief of the State and Local Government Cost Estimates Unit for the entire period that UMRA has been effective. The CBO Director is appointed for a four-year term, 2 U.S.C. § 601 (a)(1)-(S) (2000), so he is also somewhat insulated from partisan politics; since the creation of the CBO in the mid-1970s, CBO Directors have worked to avoid being identified as part of partisan politics. Cf. Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayman Congress, 51 DUKE L.J. 1277, 1315 & nn.119-20 (2001) (noting the benefits of, and difficulties sometimes occasioned for politicians by, the nonpartisan nature of the CBO directorship).
124. For a discussion of the shift in power away from committees generally, see DAVID W. ROHDE, PARTIES AND LEADERS IN THE POSTREFORM HOUSE (1991).
125. See supra note 49 and accompanying text.
126. See DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS 182-83 (1999); see also Garrett, supra note 8, at 759-62 (discussing similar uses of frameworks to remove power from committees that other legislators no longer trusted as faithful agents).
127. Cf. Mathew D. McCubbins, The Legislative Process, in THE ENCYCLOPEDIA OF DEMOCRATIC THOUGHT 403-08 (Paul Barry Clarke & Joe Foweraker eds., 2001) (noting that procedures delegate power to allow the front-bench and back-bench to check each other); McNollgast, supra note 119, at 1685 (describing how procedures provide checks and balances among players in Congress, including party leaders, committee chairs, and members).
128. With the weakening of seniority as the primary basis for appointing committee chairs in the last decades, the power of the chair that is independent from the party leadership has also weakened. See COX & MCCUBBINS, supra note 121, at 52-54.
129. See GARY W. COX & MATHEW D. MCCUBBINS, SETTING THE AGENDA 29 (2005).
130. See Dauster, supra note 54, at 30-34 (describing the particularly convoluted Byrd Rule in the reconciliation process).
131. See MARTIN B. GOLD, SENATE PROCEDURE AND PRACTICE 104-08 (2004) (describing how nongermane floor amendments are a route around committees and leadership to bring issues directly to the floor).
132. 2 U.S.C. § 1571 (2000).
133. See, e.g., Bruhl, supra note 11, at 372-413; Michael B. Miller, The Justiciability of Legislative Rules and the "Political" Political Question Doctrine, 78 CAL. L. REV. 1341, 1357-63 (1990).
134. See Garrett, Conditions, supra note 10, at 296.
135. This concept is derived from JOHN RAWLS, A THEORY OF JUSTICE 118-23 (rev. ed. 1999). It is an important aspect of Elster's analysis of constitutions as commitment devices. See JON ELSTER, ULYSSES UNBOUND 130-33 (2000). The partial veil of ignorance idea has been developed in other contexts by legal scholars. See, e.g., Michael A. Fitts, Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions, 88 MICH. L. REV. 917, 965-77 (1990); Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 YALE L.J. 399 (2001). I also discuss it in the context of frameworks providing neutral rules for certain decisions. See Garrett, supra note 8, at 736-41.
136. See Vermeule, supra note 135, at 428-29.
137. For example, preemption of state taxing authority might trigger UMRA; preemption of state laws regulating women's reproductive freedom will not. Both have implications for federalism.
138. See Garrett, supra note 41, at 1138.
139. See, e.g., GAO, COVERAGE, supra note 17, at 22-25; Gullo, supra note 63, at 568-69.
140. See South Dakota v. Dole, 483 U.S. 203, 211 (1987).
141. See Garrett, supra note 41, at 1127.
142. See Federalism Act of 1999, H.R. 2245, 106th Cong. § 8(b)(2) (1999). The Senate companion bill was called the Federalism Accountability Act of 1999, S. 1214, 106th Cong. (1999).
143. See ADVISORY COMM'N ON I NTERGOVERNMENTAL RELATIONS, REGULATORY FEDERALISM 7-10 (1984), available at http://www.library.unt.edu/ gpo/acir/Reports/brief/B-7.pdf; see also Michael Fix & Daphne A. Kenyon, Introduction to COPING WITH MANDATES , supra note 87, at 1, 3-4 (describing both crossover sanctions and crosscutting requirements).
144. H.R. 2245 § 8(b)(1).
145. Id. § 8(b)(2). It is not clear that the CBO or the committee itself is the best entity to describe the preemption and its constitutional basis, although certainly the CBO is the right entity to provide cost estimates. In earlier work, Adrian Vermeule and I have suggested a framework law to deal with constitutional issues implicated by legislation and described a specialized staff that might provide expertise in analyzing bills. See Garrett & Vermeule, supra note 123, at 1317-19 (proposing an Office for Constitutional Issues).
146. H.R. 2245 § 8(b)(2).
147. See Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1,17 (2007) (arguing in favor of a clear statement of express preemption because it would better ensure congressional attention to-and vigorous debate of-issues involving state regulation, and describing the current state of the jurisprudence as inconsistent).
148. For a discussion of the current interpretive practice relating to agencies and preemption, see Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 743-55 (2004); Elizabeth Garrett, Step One of Chevron v. Natural Resources Defense Council, in A GUIDE TO JUDICIAL AND POLITICAL REVIEW OF FEDERAL AGENCIES 55, 73-75 (John F. Duffy & Michael Herz eds., 2005) (discussing the use of clear statement rules in judicial review of agency interpretations).
149. H.R. 2245 § 9(a), see also Anita S. Krishnakumar, Representation Reinforcement: A Legislative Solution to a Legislative Process Problem 43-46 (St. John's Univ. Sch. Of Law Legal Studies Research Paper Series, Paper No. 07-0079, 2007), available at http://SSRN.com/abstract= 1009230 (proposing a framework law enforced in part through judicial use of clear statement rules in statutory interpretation).
150. See, e.g., United States v. Bass, 404 U.S. 336, 349 (1971) ("In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.").
151. U.S. CONST. art. 1, § 5, cl. 2.
152. Unfunded Mandate Reform Act of 1995 § 108, 2 U.S.C. § 1515 (2000).
153. Some have argued that this feature of Senate rules is unconstitutional because it allows past Senates to impermissibly bind future ones, particularly because amendments to the Senate rules can be filibustered and require a two-thirds vote for cloture. See, e.g., John C. Roberts, Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule, 20 J.L. & POL. 505, 520-38 (2004) (concluding first that any rule can be changed by majority vote). Nonetheless, whatever the validity of the reason, Senate rules are not readopted each session, in contrast to the House. See id. at 511-12. Moreover, the Senate's recent decision to depart from the supermajority voting requirement with respect to UMRA points of order and return to a simple majority vote occurred in the context of a legislative vehicle that cannot be filibustered, the concurrent budget resolution. See supra note 49.
154. Although this provides the House an opportunity for substantial revision of the rules every two years, the changes are largely incremental, and the basic structure of the House rules has been largely unchanged since the adoption of the so-called Reed's rules in the 1880s. See COX & MCCUBBINS, supra note 129, at 75-76. This suggests that procedures enacted through internal resolutions are relatively durable even though not adopted as statutes.
155. See, e.g., H.R. Res. 5, 108th Cong. § 1 (2003) (readopting "applicable provisions of law... that constituted rules of the House at the end of the One Hundred Seventh Congress").
156. 141 CONG. REC. 7747 (1995) (statement of Sen. Kempthorne).
157. 462 U.S. 919 (1983).
158. Id. at 956 n.21.
159. See Miller, supra note 133, at 1348-51.
160. There might be an argument that any supermajority votes to waive a point of order violate the Constitution, which arguably requires only majority votes to pass legislation in the absence of a specific constitutional mandate otherwise. See generally Bruce Ackerman et al., An Open letter to Congressman Gingrich, 104 YALE L.J. 1539 (1995) (arguing against the constitutionality of an internal House rule requiring a three-fifths vote to pass tax increases). But see John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995) (defending the rule's constitutionality). For further discussion, see Skaggs v. Carle, 110 F.3d 831, 836 (D.C. Cir. 1997) (finding that members of Congress did not have the ability to challenge the House rules in Court).
161. The appropriate remedy in such a case is unclear. Perhaps the court would merely strike the provision that violated the framework rule. On the other hand, a court could not be certain that the law would have passed without that particular provision, so it could be argued that the entire statute would be void. These are the same questions analyzed in cases involving severance of one provision of a law found unconstitutional from the rest of the law, or in state cases involving single-subject rules for legislation. See ESKRIDGE, FRICKEY & GARRETT, supra note 50, at 357-65 (discussing single-subject rules).
162. See, e.g., Aaron-Andrew P. Bruhl, If the Judicial Confirmation Process Is Broken, Can a Statute Fix It?, 85 NEB. L. REV. 960, 973-76 (2007).
163. Metzenbaum v. FERC, 675 F.2d 1282, 1288 (D.C. Cir. 1982).
164. Pub. Citizen v. U.S. Dist. Court, 486 F.3d 1342, 1349-55 (D.C. Cir. 2007) (applying the enrolled bill rule of Field v. Clark, 143 U.S. 649 (1892), and dismissing a challenge to the Deficit Reduction Act).
165. Compare Field, 143 U.S. at 672 (holding that the signing of an enrolled bill by the Speaker of the House and the President of the Senate functions as an official attestation that the bill is the one that actually passed Congress, and the "respect due to coequal and independent departments requires the judicial department to act upon that assurance"), with United States v. Munoz-Flores, 495 U.S. 385, 391 (1990) (rejecting a claim that invalidating a statute on Origination Clause grounds would evince a lack of respect for the determinations of the House).
166. See Raines v. Byrd, 521 U.S. 811, 829-30 (1997). For a discussion of standing and other issues of justiciability in the context of framework legislation, see Aaron-Andrew P. Bruhl, Return of the Line Item Veto? Legalities, Practicalities, and Some Puzzles, 10 U. PA. J. CONST. L. (forthcoming 2008) (manuscript at 45-58), available at http:// ssrn.com/abstract=999644.
167. See Hans A. Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197, 245 (1976).
168. Id. at 242.
169. See id. at 242-43.
170. Ch. 753, 60 Stat. 812.
171. Pub. L. No. 91-510, 84 Stat. 1140.
172. See Garrett, Conditions, supra note 10, at 294, 296 (relating these Acts to framework laws).
173. Such enforcement would presumably come usually when a private party would challenge the validity of a law on the ground that Congress did not follow the relevant rules when it enacted the law. It would be harder to envision a challenge on the ground that a law that should have been enacted was not because of improper application of some rule, particularly given the stringent limitations on lawmaker standing.
174. Cf. Ferejohn, supra note 84, at 136-49 (describing the accountability-discretion tradeoff that lawmaker-agents consider).
175. See supra text accompanying notes 151-52.
176. See Garrett, Conditions, supra note 10, at 312-17.
177. See Bruhl, supra note 11, at 364-65.
178. Such third parties include courts and executive branch enforcers; Congress is more willing to allow enforcement by entities it has more direct influence over, such as the CBO or the Joint Committee on Taxation. For example, Congress attempted to vest sequestration, the most stringent enforcement of the budget process, in the GAO, and only switched that enforcement to the Office of Management and Budget when the Supreme Court ruled the delegation to the GAO unconstitutional. See Bowsher v. Synar, 478 U.S. 714, 736 (1986).
179. See, e.g., Bruhl, supra note 11, at 404-15; see also Miller, supra note 133, at 1364, 1374 (determining that judicial review would be constitutional, but that courts should decline to review because compliance with procedural rules is a political question that courts should refrain from deciding).
180. For an exception, see Bruhl, supra note 166 (manuscript at 47-53) (describing possible ways around current standing doctrine that seems to stand in the way of judicial review of one framework law, the Line Item Veto Act).
181. Compare Clinton v. City of New York, 524 U.S. 417, 447-49 (1998) (holding the Line Item Veto Act unconstitutional because of its failure to comply with the Constitution's bicameralism and presentment requirements, even though Congress had augmented the President's power), with Bowsher, 478 U.S. at 732-34 (holding Congress' retention of removal power over the Comptroller General to intrude unconstitutionally into the President's power to execute the laws), and INS v. Chadha, 462 U.S. 919, 951-59 (1983) (holding the one-house veto unconstitutional because among other things, it was an exercise of legislative power at the expense of the President's veto power).
182. See, e.g., Metzenbaum v. FERC, 675 F.2d 1282, 1285-86 (D.C. Cir. 1982) (describing an example of a waivable point of order in the Alaskan Natural Gas Transportation Act); see also id. at 1287-88 (holding the issue nonjusticiable, but also suggesting that any objection had been waived in a special rule).
183. Cf. Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 HARV. L. REV. 543, 579-80 (2007) (contrasting judicial review of timing rules with the review of other internal rules because the former are relatively straightforward).
184. In other contexts, the Supreme Court has reviewed the state of the legislative record to determine if the empirical basis on which Congress legislated was sufficient. See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368 (2001) (concerning the American with Disabilities Act); United States v. Morrison, 529 U.S. 598, 635 (2000) (concerning the Violence Against Women Act); see also Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80, 83 (2001) (describing the Court's scrutiny of the legislative record as "undermin[ing] Congress's ability to decide for itself how and whether to make a record in support of pending legislation"); Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 YALE L.J. 1707, 1733-37 (2002) (exploring the complexity of defining the legislative record).
185. I appreciate Bob Rasmussen's insight on this point.
186. See, e.g., Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 383 (1986) (describing this sort of "hard look" review of agency policy).
187. Cf. Frank B. Cross, Shattering the Fragile Case for Judicial Review of Rule-making, 85 VA. L. REV. 1243, 1285-86 (1999) (arguing that "[t]he case for judicial review of agency action has... been a tactic to advance substantive ends").
188. Cf. Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 60-62 (1995) (describing the problem of ossification in agency rulemaking).