Judicial review of congressional factfinding

Harvard Law Review

Volumn 122, Issue 2, 2008, Pages 767-786

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EID: 59549089493     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (154)

1. Compare Bradford R. Clark, Unitary Judicial Review, 72 GEO. WASH. L. REV. 319, 319 (2003) ("[J]udicial review is a unitary doctrine under the Supremacy Clause that requires courts to treat all parts of the Constitution as 'the supreme Law of the Land' and to disregard both state and federal law to the contrary." (citation omitted)),
2. with MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999) (preferring an iteration of popular constitutionalism to judicial supremacy in interpreting the Constitution).
3. See Neil Devins & Keith E. Whittington, Introduction, in CONGRESS AND THE CONSTITUTION 1, 1 (Neil Devins & Keith E. Whittington eds., 2005) (noting that "[t]here has been little sustained attention to congressional treatment of the Constitution and constitutional issues").
4. Cf. United States v. Lopez, 514 U.S. 549, 562 (1995) (striking down the Gun-Free School Zones Act because neither "the statute nor its legislative history contain[ed] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone" (quoting Brief of the United States at 5-6, Lopez (No. 93-1260), 1994 WL 242541) (internal quotation marks omitted));
5. Williamson v. Lee Optical, 348 U.S. 483, 487 (1955) (holding that although the law at issue may have been "needless," it was "for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement").
6. 358 U.S. 1 (1958).
7. Id. at 18.
8. See, e.g., Kimel v. FIa. Bd. of Regents, 528 U.S. 62, 89 (2000) (discussing its review of congressional factfinding and policy judgments);
9. FIa. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630 (1999) (same);
10. City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (same);
11. cf. Lamprecht v. FCC, 958 F.2d 382, 392 n.2 (D.C. Cir. 1992) (Thomas, J.) (upholding review of facts to ensure that judicial review does not turn into "an elaborate farce").
12. Such an argument can take many forms: from the broad claim that "it is the duty of legislators as well as judges to consult [the Constitution] and conform their acts to it, so it should be presumed that all their acts do conform to it unless the contrary is manifest," James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 142 (1893), to the narrower claim that the "constitutional design . . . does not require the judiciary to supply the substantive content of all the Constitution's provisions,"
13. Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 239 (2002).
14. Compare Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991) (striking down transfer of authority to the MWAA because the legislation required creation of a Board of Review composed of congressmen and that would have veto power over the MWAA directors' decisions),
15. with Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001) (upholding delegation to the EPA).
16. See United States v. Lopez, 514 U.S. 549, 604 (1995) (Souter, J., dissenting) (stating that factfinding is "expressly assigned to [Congress] by the Constitution").
17. See Louis Fisher, Constitutional Analysis by Congressional Staff Agencies, in CONGRESS AND THE CONSTITUTION, supra note 2, at 64.
18. The practice is by no means limited to these contexts, however. See, e.g., Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229, 239-47 (1985) (discussing judicial review of facts in the First Amendment context).
19. See Barkow, supra note 7, at 311-12.
20. 301 U.S. 1 (1937).
21. 29 U.S.C. §§ 151-169 (2006).
22. Jones & Laughlin Steel, 301 U.S at 37.
23. Id.
24. Archibald Cox, The Role of Congress in Constitutional Determinations, 40 U. CIN. L. REV. 199, 225 (1971).
25. See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964) (finding constitutional Title II of the Civil Rights Act of 1964's preclusion of racial discrimination by local businesses that provide public accommodations where Congress determined that these businesses affected interstate commerce);
26. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (same).
27. 426 U.S. 833 (1976). National League of Cities was the midpoint in a series of cases exploring the scope of the Fair Labor Standards Act specifically, and the nature of federal-state relations more generally.
28. A mere eight years earlier, in Maryland v. Wirtz, 392 U.S. 183 (1968), the Supreme Court had held that the Fair Labor Standards Act applied to state schools and hospitals, and thus that states must pay a minimum wage and overtime.
29. Id. at 194-95. The Court had occasion to hear National League of Cities due to a congressional amendment to the Fair Labor Standards Act regulating minimum wage and overtime pay for state and local government employees. National League of Cities rejected Wirtz's broad assertions of federal power, instead acknowledging the fears of unchecked federal authority over the states expressed in Justice Douglas's Wirtz dissent.
30. See National League of Cities, 426 U.S. at 855
31. (citing Wirtz, 392 U.S. at 205 (Douglas, J., dissenting)).
32. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (overruling National League of Cities because a subjective determination of "integral" or "traditional" governmental functions provided the Court no guidance and instead relying on the structure of the federal system itself to justify protecting state sovereignty). Gregory v. Ashcroft, 501 U.S. 452 (1991), is not to the contrary. There, the creation of clear statement rules was an extrinsic control on the effect of congressional factfinding of the type discussed in section IV.B, and thus does not implicate the deference issue.
33. See infra p. 785.
34. 384 U.S. 641 (1966).
35. Id. at 653.
36. See Bradford R. Clark, Note, Judicial Review of Congressional Section Five Action: The Fallacy of Reverse Incorporation, 84 COLUM. L. REV. 1969, 1986 (1984) (noting that "courts lack Congress's vast factfinding capacity").
37. 514 U.S. 549 (1995).
38. Id. at 551.
39. 18 U.S.C. § 92 2(q) (2006).
40. Id. § 922(q)(1)(A).
41. Lopez, 514 U.S. at 562.
42. 529 U.S. 598 (2000);
43. see id. at 629-37 (Souter, J., dissenting);
44. see also Barkow, supra note 7, at 312.
45. Pub. L. No. 103-322, 108 Stat. 1902 (1994) (codified as amended in scattered sections of 16, 18, and 42 U.S.C).
46. Morrison, 529 U.S. at 629-34 (Souter, J., dissenting).
47. 379 U.S. 241 (1964).
48. Morrison, 529 U.S. at 635 (Souter, J., dissenting).
49. 531 U.S. 356 (2001).
50. Pub. L. 101-336, 104 Stat. 327 (1990) (codified as amended in scattered sections of 42 U.S.C).
51. Garrett, 531 U.S. at 374.
52. Id. at 377 (Breyer, J., dissenting).
53. Id. at 370 (majority opinion). Justice Breyer in dissent criticized the Court's foray into fact-finding, noting that it reversed a longstanding mode of deference to Congress in these matters.
54. Id. at 386-87 (Breyer, J., dissenting).
55. See cases cited supra note 6;
56. see also Barkow, supra note 7, at 304-07 (highlighting this trend).
57. Barkow, supra note 7, at 303;
58. see also U.S. CONST. amend. XIV, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.").
59. Barkow, supra, note 7, at 304
60. (quoting Clark, supra note 23, at 1979).
61. Current Supreme Court separation of powers doctrine is concerned both with ensuring that one branch does not arrogate power to itself and with ensuring that the Court only engages questions that it is institutionally competent to adjudicate. See Bradford R. Clark, Separation of Powers As a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1372-93 (2001);
62. see also Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 327 (2000) (noting the institutional competence concern).
63. See, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 199 (1997) ("The Constitution gives to Congress the role of weighing conflicting evidence in the legislative process.").
64. Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA. L. REV. 1253, 1273 (1988).
65. Clark, supra note 42, at 1393.
66. See id. at 1325 (noting that because of cumbersome federal lawmaking procedures "the federal government's inability to adopt 'the supreme Law of the Land' leaves states free to govern").
67. 462 U.S. 919 (1983).
68. Id. at 959.
69. Id. at 958.
70. Id. at 952-53.
71. 501 U.S. 252 (1991).
72. Id. at 255.
73. Id.
74. Id. at 269.
75. Id. at 276. The focus on the precise manner in which Congress can exercise its legislative power recalls Chadha.
76. Cf. Bowsher v. Synar, 478 U.S. 714, 726 (1986) (noting "Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment").
77. See, e.g., Am. Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946) (upholding a delegation to the SEC to modify the structure of holding companies that it finds to be "unduly or unnecessarily complicate[d]") ;
78. Nat'l Broad. Co. v. United States, 319 U.S. 190, 215-16 (1943) (permitting delegation to the FCC based on concern for the "public interest, convenience, or necessity") (internal quotation marks omitted);
79. N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25 (1932) (permitting delegation to the Interstate Commerce Commission based on the "public interest"). To be sure, nondelegation jurisprudence may have fictionalized Congress's grants of authority as something other than legislative power in order to maintain that they do not violate separation of powers.
80. See, e.g., Loving v. United States, 517 U.S. 748, 758-59 (1996);
81. Touby v. United States, 500 U.S. 160, 164-65 (1991).
82. But see Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 487 (2001) (Thomas, J., concurring) (describing the delegated power as legislative);
83. id. at 489 (Stevens, J., concurring in part and concurring in the judgment) (same).
84. See Whitman, 531 U.S. at 474 (collecting cases).
85. But see Clinton v. City of New York, 524 U.S. 417 (1998). In Clinton, the Court struck down the Line Item Veto Act, which granted the President the ability to cancel items in spending bills before signing the bills into law.
86. Id. at 421, 436. Although it is true the Act did not represent arrogation on the part of the President - Congress granted him this power - the fact that the provision explicitly circumvented constitutionally required lawmaking procedures informed the holding of unconstitutionality.
87. Id. at 438-39;
88. see also Clark, supra note 42, at 1386-90 (discussing these implications of Clinton). In Clinton, unlike in the other cases discussed above, the Act infringed on core constitutional requirements.
89. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.").
90. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 199 (1997).
91. Although perhaps a different kind of self-arrogation than was at issue in Chadha or Metropolitan Washington Airports Authority, it is not different in effect.
92. 531 U.S. 457.
93. Id. at 474-75 (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)).
94. See, e.g., Mistretta, 488 U.S. at 373 (majority opinion) (discussing the numerous broad conditions that have satisfied the intelligible principle requirement);
95. see also cases cited supra note 57.
96. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring) ("[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II").
97. See Fisher, supra note 10, at 64.
98. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (internal quotation marks omitted).
99. One is reminded of the political question doctrine, which in its classical iterations precludes judicial review of cases where there is a "textually demonstrable commitment to a coordinate political branch [or a] lack of judicially manageable standards." Barkow, supra note 7, at 272. Court review of congressional factfinding would seem to fall squarely within this frame; the same reasons that the Court lacks institutional capacity to find or weigh facts suggest a lack of manageable standards under the political question doctrine.
100. This notion was originally articulated by Professor Hans Linde, and curls around the belief that government itself, in its decisionmaking, must "act by due process of law." Hans A. Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197, 222 (1976).
101. See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 103-05 (1976) (noting that the Civil Service Commissioner could not predicate discriminatory practices on national security concerns; such decisions had to be made by Congress or the President).
102. 438 U.S. 265 (1978).
103. Id. at 308-09 (opinion of Powell, J.).
104. Id. at 309 ("isolated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria").
105. 529 U.S. 120 (2000).
106. Id. at 161.
107. Id. at 143-56.
108. Id. at 133;
109. see also John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223 (discussing the implications of Brown & Williamson when viewed through the lens of nondelegation).
110. Cf. MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994) (noting the unlikelihood of Congress leaving an important aspect of rate regulation to FCC discretion).
111. 143 U.S. 649 (1892).
112. Id. at 672. The appellants claimed that a section in the version passed by Congress was absent from the version the President signed.
113. Id. at 688-89.
114. Id. at 672-73.
115. Id. at 673 ("Judicial action, based upon [the suggestion of a conspiracy in Congress], is forbidden by the respect due to a co-ordinate branch of the government. The evils that may result from the recognition of the principle that an enrolled act, in the custody of the secretary of state, attested by the signatures of the presiding officers of the two houses of congress, and the approval of the president, is conclusive evidence that it was passed by congress, according to the forms of the constitution, would be far less than those that would certainly result from a rule making the validity of congressional enactments depend upon the manner in which the journals of the respective houses are kept by the subordinate officers charged with the duty of keeping them.").
116. Id.
117. See Barkow, supra note 7, at 304.
118. Stanley C. Brubaker, The Court As Astigmatic Schoolmarm: A Case for the Clear-Sighted Citizen, in THE SUPREME COURT AND AMERICAN CONSTITUTIONALISM 69, 80 (Bradford P. Wilson & Ken Masugi eds., 1998).
119. See Barkow, supra note 7, at 240.
120. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984).
121. Even when not so predicated, the small possibility of this occurrence suggests that we should not sacrifice constitutional and democratic values by preparing for it generally. Cf. Field, 143 U.S. at 672-73 (noting the "remote" possibility that certain congressional officials will conspire to give the President a bill not passed by Congress).
122. Cf Gonzales v. Carhart, 127 S. Ct. 1610, 1636-37 (2007) (upholding abortion legislation despite uncertainty over whether the statute creates unconstitutional health risks).
123. See generally CASS SUNSTEIN, THE PARTIAL CONSTITUTION 322-33 (1993) (discussing courts' reluctance to engage in speculative rulemaking or to take account of probabilistic injuries).
124. To be sure, one could craft an argument claiming this is a failure of the democratic process and thus review should include congressional factual findings. Cf. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 73-104 (1980) (arguing that judicial review should be used in cases where the democratic process has failed and focusing on the situations in Carolene Products's footnote 4 as prime examples). The values Professor John Hart Ely sought to protect - nondiscrimination and equality - offer a much more fertile substrate on which to craft an exception to deference. Here, the equities lie in favor of Congress, especially given that both elections and the Court itself can cabin the outcome-determinativeness of facts.
125. Cf. Richard A. Posner, Statutory Interpretation - In the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 815-16 (1983) (arguing the canon of avoidance risks creating a "constitutional 'penumbra'" that unjustifiably restricts political branch action). Similarly, Professor Alexander Bickel has noted that majoritarianism expressed through legislative enactment is the precondition for constitutional democracy.
126. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-20 (2d ed. 1986).
127. Cf. Daryl J. Levinson, Rights Essentialism and Remedial Equilibrium, 99 COLUM. L. REV. 857, 880-84 (1999) (discussing how constitutional rights can be shaped by judicial remedies directed against probabilistic harms).
128. Cf. United States v. Morrison, 529 U.S. 598, 628-34 (2000) (Souter, J., dissenting) (noting the high level of factfinding conducted by Congress).
129. See, e.g., Roper v. Simmons, 543 U.S. 551, 561 (2005) (noting the "evolving standards of decency" underlying Eighth Amendment jurisprudence). There is a suggestion that given the uniqueness of religion, contested questions that legitimately may or may not violate the Establishment Clause or Free Exercise Clause should be the province of the people.
130. Cf. TUSHNET, supra note 1 (discussing popular constitutionalism);
131. Larry D. Kramer, The Supreme Court, 2000 Term - Foreword: We the Court, 115 HARV. L. REV. 4, 16 (2001) (suggesting that the people should have some role in constitutional interpretation).
132. See Sunstein, supra note 42, at 320 (arguing that the nondelegation doctrine promotes rule of law values by maintaining congressional control over the lawmaking process).
133. Lamprecht v. FCC, 958 F.2d 382, 392 n.2 (D.C. Cir. 1992) (Thomas, J.).
134. Clark, supra note 42, at 1324 (quoting INS v. Chadha, 462 U.S. 919, 946 (1983)).
135. Chadha, 462 U.S. at 951.
136. Clark, supra note 42, at 1339.
137. Id. (citing McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705, 707 & n.5 (1992)).
138. Id.
139. Neil Devins, Congressional Fact-finding and the Scope of Judicial Review, in CONGRESS AND THE CONSTITUTION, supra note 2, at 220, 221 (emphasis added).
140. See id.
141. Id.
142. But see Monaghan, supra note 11, at 262-63 (arguing that where constitutional rules turn on questions of fact, appellate courts have authority to independently judge these facts). Professor Henry Monaghan offers a forceful argument that appellate courts have the "authority to exercise independent judgment with respect to adjudicative facts of constitutional law application."
143. Id. at 276. Nevertheless, this argument's application to review of congressional factfinding is difficult to map. First, Professor Monaghan's argument is offered in the context of the role of appellate courts in independently judging specific constitutional facts about the case before the court.
144. Id. at 230 n.16 (concluding that "[a]djudicative facts tend to be litigation specific");
145. see also Cox v. Louisiana, 379 U.S. 536, 538-44 (1965) (reweighing facts where it was believed that the state court had inadequately protected First Amendment values). Congressional factfinding does not raise specific factual inquiries, but rather focuses on generalized questions of evidence useful in policymaking. Second, although courts may be good at undertaking specific factual inquiries, they are less capable of undertaking the vast data collection and analysis necessary to produce good law. Moreover, there is some value in cases where the Supreme Court, by creating fact-dependent standards, grants the popularly responsible branch of government a role in constitutional interpretation.
146. See HENRY HART, JR. & ALBERT SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAWS 138-41 (William Eskridge, Jr. & Philip Frickey eds., 1994).
147. See id.;
148. see also, e.g., Sherman Act, ch. 647, 26 Stat. 209 (1890) (codified at 15 U.S.C. §§ 1-7 (2006)) (granting great latitude to the courts to determine what constitutes an unreasonable restraint of trade or other monopolistic activity).
149. 501 U.S. 452 (1991).
150. Id. at 469-70;
151. see also BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994) (extending the Gregory rule to cases in bankruptcy).
152. See Gregory, 501 U.S. at 460-64.
153. See Barkow, supra note 7, at 241-44 (discussing ways in which the Rehnquist Court decreased the degree of deference the Court showed to the political branches).
154. Id. at 240.