Soft law: Lessons from congressional practice

Stanford Law Review

Volumn 61, Issue 3, 2008, Pages 573-627

  Gersen, Jacob E ^a   Posner, Eric A ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 62649148804     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (335)

1. See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991);
2. William. N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215 (2001);
3. Sanford Levinson & Jack M. Balkin, Constitutional Crises, 157 U. PA. L. REV. (forthcoming 2009), available at http://papers.ssm.com/sol3/papers.cfm?abstract-id=1267979 (examining the relationship between constitutional crises and constitutional development);
4. Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991 (2008) (discussing the way confrontations between branches generate constitutional development);
5. Mark. Tushnet, Constitutional Hardball, 37 J. MARSHALL L. REV. 523 (2004) (distinguishing constitutional and preconstitutional understandings);
6. Ernest A. Young, The Constitution Outside the Constitution, 117 YALE LJ. 408 (2007);
7. Jon Elster, Unwritten Constitutional Norms (2007) (unpublished manuscript) (describing binding constitutional norms that do not appear in the written constitution). The idea is not new. See, e.g., Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975).
8. See, e.g., COMMITMENT AND COMPLIANCE (Dinah Shelton ed., 2000) (studying cases of compliance with nonlegal norms); JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 91-100 (2005) (discussing differences in domestic effects of the two types of law);
9. ROBERT E. SCOTT & PAUL B. STEPHAN, THE LIMITS OF LEVIATHAN: CONTRACT THEORY AND THE ENFORCEMENT OF INTERNATIONAL LAW 110-20 (2006) (arguing that softlaw-style informal cooperation sometimes is possible when formal agreements are not);
10. Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT'L ORG. 421 (2000) (providing a typology and general analysis);
11. Daniel E. Ho, Compliance and International Soft Law: Why Do Countries Implement the Basle Accord, 5 J. INT'L ECON. L. 647 (2002) (providing empirical evidence that many states, especially democracies, comply with the Basle Accord, even though this instrument is not legally binding);
12. Charles Lipson, Why Are Some International Agreements Informal?, 45 INT'L ORG. 495 (1991) (arguing that informal agreements can be negotiated more quickly, are more flexible, require less information, and can avoid publicity, but provide less of a commitment, than legal agreements).
13. See Ho, supra note 2 (providing empirical evidence for the Basle Accords).
14. See Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT. 307 (2006);
15. Christopher N. May, Presidential Defiance of " Unconstitutional" Laws: Reviving the Royal Prerogative, 21 HASTINGS CONST. L.Q. 865 (1994);
16. William D. Popkin, Judicial Use of Presidential Legislative History: A Critique, 66 IND. L.J. 699 (1991);
17. Kristy L. Carroll, Comment, Whose Statute Is It Anyway?: Why and How Courts Should Use Presidential Signing Statements When Interpreting Federal Statutes, 46 CATH. U. L. REV. 475 (1997);
18. see also PHILLIP J. COOPER, BY ORDER OF THE PRESIDENT: THE USE AND ABUSE OF EXECUTIVE DIRECT ACTION 199-230 (2002).
19. Neil J. Kinkopf & Peter M. Shane, Signed Under Protest: A Database of Presidential Signing Statements, 2001-2006 (Ohio State Pub. Law, Working Paper No. 106, 2007), available at http://ssrn.com/abstract=1022202 (assembling collection of presidential signing statements).
20. See David Zaring, Best Practices, 81 N.Y.U. L. REV. 294, 307-13 (2006) (discussing trend towards best practices in agency actions in past decade).
21. See generally John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 914-17 (2004) (discussing doctrine governing what type of rules must be issued using procedural formality);
22. Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463, 1480-81 (1992) (discussing tradeoffs entailed in enhanced procedural formality in rulemaking).
23. See Jacob E. Gersen, Legislative Rules Revisited, 74 U. CHI. L. REV. 1705 (2007) (discussing Hoctor v. U.S. Dep't of Agric., 82 F.3d 165 (7th Cir. 1996)).
24. Cf. Ethan Bueno de Mesquita & Matthew Stephenson, Informative Precedent and Intrajudicial Communication, 96 AM. POL. SCI. REV. 755 (2002).
25. See, e.g., Empro Mfg. Co. v. Ball-Co Mfg. Co., 870 F.2d423, 426 (7th Cir. 1989).
26. See, e.g., Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992).
27. With this qualification, we hope to avoid taking a position in the debate between positivists and their critics, who disagree about whether formalities mark the border between law and nonlegal statements.
28. The final example, involving private contracting, does not involve lawmaking authorities except in the metaphorical but usefully analogous sense that private parties can make "law" for themselves by entering contracts. Cf. H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1997).
29. The closest work is on the "expressive functions" of law, which focuses on the communicative impact of hard law. See, e.g., ERIC A. POSNER, LAW AND SOCIAL NORMS (2000);
30. Robert Cooter, Do Good Laws Make Good Citizens? An Economic Analysis of Internalized Norms, 86 VA. L. REV. 1577, 1598 (2000);
31. Robert Cooter, Expressive Law and Economics, 27 J. LEGAL STUD. 585, 595 (1998);
32. Dhammika Dharmapala & Richard H. McAdams, The Condorcet Jury Theorem and the Expressive Function of Law: A Theory of Informative Law, 5 AM. L. & ECON. REV. 1 (2003) (formal law serves expressive functions, revealing information about legislative information);
33. Richard H. McAdams, A Focal Point Theory of Expressive Law, 86 VA. L. REV. 1649, 1652 (2000) (arguing law can provide a resolution to coordination problems by specifying a focal point);
34. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2029-31 (1996). For an overview, see Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363 (2000).
35. There are familiar exceptions. Consider, for example, the Senate's approval of treaties, the approval of proposed constitutional amendments, and the decision to impeach by the House.
36. Rankin M. Gibson, Congressional Concurrent Resolutions: An Aid Statutory Interpretation?, 37 A.B.A. J. 421 (1951).
37. See, e.g., Doyle W. Buckwalter, The Congressional Concurrent Resolution: A Search for Foreign Policy Influence, 14 MIDWEST J. POL. SCI. 434, 442-44 (1970) (arguing that the concurrent resolution is often used by Congress to attempt to influence foreign policy).
38. But see GABRIELE GANZ, Q UASI-LEGISLATION: RECENT DEVELOPMENTS IN SECONDARY LEGISLATION (1987). Ganz surveys the use of extrastatutory codes of practice, circulars, and guidelines in the United Kingdom. She argues that quasi legislation can be an effective way of regulating behavior when there is already consensus; it plays a coordination role. Although Ganz has a somewhat different set of nonstatutory laws in mind, she draws a parallel distinction between quasi legislation aimed at private parties and quasi legislation aimed, at other public entities that we develop here. Our theoretical apparatus differs in that we emphasize the informational effects of soft statutes or, in her terms, nonstatutes.
39. See, e.g., Bowsher v. Synar, 478 U.S. 714, 756 (1986) ("A concurrent resolution, in contrast, makes no binding policy; it is a means of expressing fact, principles, opinions, and purposes of the two Houses . . . ." (citations and internal quotation marks omitted)).
40. We discuss examples infra Part I.B.
41. Cf. Dharmapala & McAdams, supra note 14 (discussing expressive effects of hard law).
42. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991); ERIC A. POSNER, LAW AND SOCIAL NORMS (2000).
43. See supra note 12.
44. U.S. CONST. art. I, § 7.
45. See, e.g., Clinton v. City of New York, 524 U.S. 417, 440 (1998) (line item veto) ("What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the 'finely wrought' procedure that the Framers designed.");
46. INS v. Chadha, 462 U.S. 9.19, 951 (1983) (legislative veto) ("It emerges clearly that the prescription for legislative action in Art. I, §§1, 7 represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.").
47. U.S. CONST, art. II, § 2.
48. Id. art. I, § 7.
49. As distinguished from the joint resolution, which is presented to the President just like a bill.
50. For a discussion of the history of concurrent resolutions, see Howard White, The Concurrent Resolution in Congress, 35 AM. POL. SCI. REV. 886, 886-87 (1941).
51. STANDING RULES OF THE SENATE, S. DOC. NO. 110-9, at 9 (2007), available at http://rules.senate.gov/ senaterules/Rules091407.pdf;
52. LEWIS DESCHLER, DESCHLER'S PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES, ch. 24 § 5, at 4802 (1974).
53. See S. Res. 91, 109th Cong. (as passed by Senate, Mar. 17, 2005).
54. See S. Res. 320, 109th Cong, (as introduced Nov. 18, 2005).
55. See S. Con. Res. 35, 103d Cong. (1993) (recognizing that "workplace accidents involving powered, industrial trucks are often the result of operation by poorly trained, untrained, or unauthorized operators").
56. See H.R. Con. Res. 80, 105th Cong. (as introduced May 15, 1997);
57. see also "Made in USA" and Other U.S. Origin Claims, 62 Fed. Reg. 63,756 n.19 (discussing concurrent resolution).
58. See S. Con. Res. 63, 104th Cong. (as passed by Senate, June 12, 1996);
59. see also Flood Compensation Program, 64 Fed. Reg. 47,358 (discussing concurrent resolution).
60. See H.R. Con. Res. 250, 109th Cong. (as introduced Sept. 27, 2005) ("[supporting the goals and ideals of Gynecologic Cancer Awareness Month").
61. See S. Res. 12, 109th Cong, (as introduced Jan. 25, 2005) ("[c]ommending the University of Southern California Trojans football team for winning the 2004 Bowl Championship Series national championship game").
62. For example, adjournment is accomplished via resolution, as is adoption of the House Rules to govern the session.
63. H.R. Con. Res. 187, 110th Cong, (as passed by Senate, July 24, 2007).
64. Id.
65. S. Con. Res. 3, 110th Cong. (as introduced Jan. 17, 2007).
66. H.R. Con. Res. 218, 110th Cong. (as introduced Sept. 24, 2007) ("[I]t is the Sense of the Congress that - (1) Congress should verify that current immigration and border security laws are enforced; (2) the Secretary of Homeland Security should ensure that construction of the border fence is expedited . . . ; (3) the report required by the Secretary should include recommendations that would enhance United States national security on the northern border and emphasize the Administration's commitment to protecting both the southern and northern, borders . . . ; (5) construction of the fence along the southern border should not be delayed; (6) Congress should fully fund the 18,000 Border Patrol agents as authorized under current law; and (7) State and law enforcement [sic] should be provided the necessary resources to prosecute those individuals who disregard United States immigration laws.").
67. See S. Con. Res. 2,110th Cong, (as introduced Jan. 17, 2007) ("[I]t is the sense of Congress that - (1) it is not in the national interest of the United States to deepen its military involvement in Iraq, particularly by increasing the United States military force presence in Iraq; (2) the primary objective of United States strategy in Iraq should be to have the Iraqi political leaders make the political compromises necessary to end the violence in. Iraq; (3) greater concerted regional, and international support would assist the Iraqis in achieving a political solution and national reconciliation; (4) main elements of the mission of United States forces in. Iraq should transition to helping ensure the territorial integrity of Iraq, conduct counterterrorism activities, reduce regional interference in the internal affairs of Iraq, and accelerate training of Iraqi, troops; (5) the United States should transfer, under an appropriately expedited timeline, responsibility for internal security and halting sectarian violence in Iraq to the Government of Iraq and Iraqi security forces; and (6) the United States should engage nations in the Middle East to develop a regional, internationally-sponsored peace and reconciliation process for Iraq.").
68. See generally Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361 (2004) (collecting constitutional rules that regulate internal congressional practice).
69. We also exclude framework or procedural statutes that are duly enacted and therefore formally legally binding, but do not directly regulate external behavior. Instead, like internal rules, they regulate Congress's internal business. The most prominent examples are framework statutes. See generally William. N. Eskridge, Jr., America's Statutory "constitution", 41 U.C. DAVIS L. REV. 1, 7-9 (2007) (describing the regulation provided by both constitutional mandates and framework statutes for the judicial, executive, and legislative branches);
70. Elizabeth Garrett, The Purposes of Framework Legislation, 14 J. CONTEMP. LEGAL ISSUES 717 (2005) (identifying several examples of framework legislation and describing five of its purposes);
71. Ernest A. Young, Toward a Framework Statute for Supranational Adjudication, 57 EMORY L.J. 93 (2007) (proposing "a set of statutory principles to regulate the delegation of authority to supranational adjudicatory institutions").
72. BARBARA HINKSON CRAIG, THE LEGISLATIVE VETO: CONGRESSIONAL CONTROL OF REGULATION 8 (1983). See generally JOHN R. BOLTON, THE LEGISLATIVE VETO: UNSEPARATING THE POWERS (1977).
73. See, e.g., Energy Conservation and Production Act, Pub. L. No. 94-385, § 305, 90 Stat. 1125 (1974) (no longer in force) (requiring sanctions involving federal assistance performance standards for new buildings to be approved by resolution of both houses); Export-Import Bank Amendments of 1974, Pub. L. No. 93-646, § 8, 88 Stat. 2333 (1975) (no longer in force) (requiring concurrent resolution to approve of presidential limitations for exports to the USSR); Trade Expansion Act of 1962, Pub. L. No. 87-794, § 351(a)(2), 76 Stat. 872 (no longer in force) (requiring concurrent resolution to approve of Tariff Commission recommended tariffs or duties); Export-Import Bank Amendments of 1974, Pub. L. No. 93-646, § 8, 88 Stat. 2333, 2336, (codified at 12 U.S.C. § 625(e)) (requiring concurrent resolution to approve of presidential limitations for exports to the USSR); Energy Conservation and Production Act, Pub. L. No. 94-385, § 305, 90 Stat. 1125, 1148 (1976), (codified at 42 U.S.C. § 6834) (requiring sanctions involving federal assistance performance standards for new buildings to be approved by resolution of both houses). For more examples, see INS v. Chadha, 462 U.S. 919 (1983) (holding the one-house legislative veto unconstitutional); id. at 1003-13 (White, J., dissenting) (listing statutes with provisions authorizing congressional review).
74. See Chadha, 462 U.S. at 946-47, 955.
75. See, e.g., Emergency Price Control Act of 1942, Pub. L. No. 77-421, 56 Stat. 23 (no longer in force);
76. Allen v. Grand Cent. Aircraft Co., 347 U.S. 535, 541-42 (1954) (discussing this legislation);
77. United States v. Moore, 340 U.S. 616, 621 (1951) (discussing use of concurrent resolution as a condition subsequent for termination, of legislation).
78. For criticism, see GOLDSMITH & POSNER, supra note 2, at 91-100;
79. Kal Raustiala, Form and Substance in International Agreements, 99 AM. J. INT'L L. 581, 588-91 (2005).
80. See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1740 (2002).
81. See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).
82. For discussions of "symbolic" statutes, see, for example, John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233 (1990) (criticizing symbolic statutes);
83. Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 DUKE L.J. 1, 74-76 (1997) (comparing instrumental, expressive, and symbolic statutes).
84. See Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 20 (1981).
85. See Rosado v. Wyman, 397 U.S. 397, 413 (1970).
86. Duane Lockard, The Politics of Antidiscrimination Legislation, 3 HARV. J. ON LEGIS. 3, 4 (1965).
87. See ROBERT G. DREHER, NEPA UNDER SIEGE: THE POLITICAL ASSAULT ON THE NATIONAL ENVIRONMENTAL POLICY ACT 14-15 (2005);
88. John H. Barton, Behind the Legal Explosion, 27 STAN. L. REV. 567, 579 (1975) ("The 1969 National Environmental Protection Act directed federal agencies to consider the environmental effects of their actions. These hortatory provisions, perceived as unenforceable, indicated that Congress had not yet decided what should be sacrificed for the sake of the environment.").
89. See generally Sophie Hsia, Foreign Direct Investment and the Environment: Are Voluntary Codes of Conduct and Self-imposed Standards Enough?, 9 ENVTL. LAW. 673 (2003).
90. 496 U.S. 310 (1990).
91. 491 U.S. 397 (1989).
92. War Powers Resolution, 50 U.S.C. §§ 1541-1548 (2000).
93. See Campbell v. Clinton, 203 F.3d 19, 24-25 (D.C. Cir. 2000) (Silberman, J., concurring) ("[I]n my view, no one is able to bring this challenge because the two claims are not justiciable. We lack 'judicially discoverable and manageable standards' for addressing them, and the War Powers Clause claim implicates the political question, doctrine."). In principle, a rule can be hard law and nonjusticiable: other agents regard the rule as legally binding but courts do not enforce it. In the case of the War Powers Act, Presidents have generally declined to say that they will not comply with it, preferring to interpret it narrowly in light of their constitutional war-making powers.
94. There is a related hard-law theory that hard, laws that are not enforced, may nevertheless affect behavior by serving as a focal point around which people coordinate. See McAdams, supra note 14. As McAdams points out, this theory can be extended to government actions that are merely symbolic. See Richard H. McAdams, An Attitudinal Theory of Expressive Law, 79 OR. L. REV. 339, 379-80 (2000) (analyzing government displays of flags and religious symbols);
95. see also Eric A. Posner, Symbols, Signals, and Social Norms in Politics and the Law, 27 J. LEGAL STUD. 765 (1998) (analyzing symbolic government behavior). For evidence, see Patricia Funk, Is There an Expressive Function of Law? An Empirical Analysis of Voting Laws with Symbolic Fines, 9 AM. L. & ECON. REV. 135 (2007) (providing evidence that the abolition of voting law that was never enforced affected voting behavior).
96. See Walter Dellinger, Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (1994).
97. See George J. Mailath et al., Maintaining Authority (Sept. 26, 2007) (unpublished manuscript), available at .http://www.princeton.edu/ %7Esmorris/pdfs/authority.pdf (modeling legal authority).
98. Michael Spence, Job Market Signaling, 87 Q.J. ECON. 355, 361-62 (1973).
99. Cf. Posner & Vermeule, supra note 1.
100. Vincent P. Crawford & Joel Sobel, Strategic Information Transmission, 50 ECONOMETRICA 1431 (1982).
101. Joseph Farrell & Robert Gibbons, Cheap Talk with Two Audiences, 79 AM. ECON. REV. 1214 (1989). For an overview as applied to legislative process, see David Austen-Smith, Strategic Models of Talk in Political Decision Making, 13 INT'L POL. SCI. REV. 45, 57 (1992).
102. See Mariea Grubbs Hoy & J. Craig Andrews, Entertainment Industry Ratings Disclosures and the Clear and Conspicuous Standard, 40 J. CONSUMER AFF. 117, 123 (2006) (discussing history of the RIAA's voluntary guidelines).
103. H.R. Con. Res. 328, 101st Cong. (1990).
104. See S. Res. 488, 109th Cong. (2006) (enacted) ("Expressing the sense of Congress that institutions of higher education should adopt policies and educational programs on their campuses to help deter and eliminate illicit copyright infringement occurring on, and encourage educational uses of, their computer systems and networks."); see also Vincent Kiernan, Higher-Education Organizations Urge a Crackdown on Illegal File Sharing, CHRON. HIGHER EDUC, Oct. 25, 2002, at A37.
105. See H.R. Con. Res. 204, 109th Cong. (2005) (stating that "the Federal Government has a responsibility ... to target prevention and intervention to reduce obesity and overweightedness in children and adolescents"); Andrew Martin, Leading Makers Agree to Put Limits on Junk Food Advertising Directed at Children, N.Y. TIMES, NOV. 15, 2006, at C3.
106. See Matthieu Glachant, Non-binding Voluntary Agreements, 54 J. ENVTL. ECON. & MGMT. 32 (2007);
107. Guy Halfteck, Legislative Threats, 61 STAN. L. REV. 629 (2008) (arguing that threat of legislative action prompted voluntary guidelines or self-regulatory changes in the U.K. in digital obscenity, hazardous waste recycling, greenhouse-gas emissions, and automobile pollution);
108. Matthieu Glachant, Voluntary Agreements Under Endogenous Legislative Threats (Fondazione Eni Enrico Mattei, Working Paper No. 36.2003, 2003), available at http://ssrn.com/abstract-id=406460.
109. See, e.g., Abbott & Snidal, supra note 2.
110. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/8.10 (Dec. 12, 1948).
111. Some scholars have argued that states might imitate other states that enjoy greater international prestige. See, e.g., Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621, 671 (2004).
112. Dharmapala & McAdams, supra note 14.
113. Id.
114. See Eric A. Posner & Cass R. Sunstein, The Law of Other States, 59 STAN. L. REV. 131, 136(2006).
115. See, e.g., S. Res. 139, 109th Cong. (2005) (enacted) ("[expressing support for the withdrawal of Russian troops from Georgia").
116. See, e.g., H.R. Res. 738, 110th Cong. (2007) (enacted) ("[expressing the sense of the House of Representatives regarding the government of Syria's continued interference in the internal affairs of Lebanon");
117. H.R. Res. 523, 109th Cong. (2005) (enacted) ("[c]ondemning Iranian President Mahmoud Ahmadinejad's threats against Israel");
118. S. Res. 63, 109th Cong. (2005) (enacted) ("[c]alling for an investigation into the assassination of Prime Minister Rafiq Hariri and urging steps to pressure the government of Syria to withdraw from Lebanon").
119. See, e.g., S. Res. 231, 109th Cong. (2005) (enacted) ("[e]ncouraging the Transitional National Assembly of Iraq to adopt a constitution that grants women equal rights under the law and to work to protect such rights").
120. See, e.g., U.R. Res. 716, 110th Cong. (2007) (enacted) (expressing the sense of the House of Representatives with respect to raising awareness and enhancing the state of computer security in the United States).
121. See Adrian Vermeule, Many-Minds Arguments in Legal Theory (Jan. 26, 2008) (unpublished manuscript, on file with author), available at http://papers.ss.rn.com/sol3/papers.cfm?abstract-id=1087017. The theorem implies that groups have more accurate views than individuals only if voting is sincere, which will normally conflict with the premises of rational choice theory. See David Austen-Smith & Jeffrey S. Banks, Information Aggregation, Rationality, and the Condorcet Jury Theorem, 90 AM. POL. SCI. REV. 34, 42 (1996).
122. See Sushil Bikhchandani et al, Learning from the Behavior of Others: Conformity, Fads, and Informational Cascades, 12 J. ECON.PERSP. 151 (1998).
123. Reducing this uncertainty is the usual explanation of the purpose of legal formalities. See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 618-19(1992).
124. This is a theme of the cognate literature on international soft law. See, e.g., Abbott & Snidal, supra note 2.
125. See Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 HARV. L. REV. 543, 559-61 (2007).
126. Here, soft law is a parallel mechanism to the Notice of Proposed Rulemaking or Notice of Inquiry that administrative agencies use.
127. One caveat is in order. Whether a multimember institution actually can have an intent has been much debated. As Kenneth A. Shepsle observed, "Congress is a they, not an it." Kenneth A. Shepsle, Congress Is a "They, ' Not an 'It': Legislative Intent as Oxymoron, 12 INT'LREV. L. & ECON. 239 (1992). We treat legislative intent as a stand-in for a collection of ideas like contemplated effect, mood, or views of the legislature. In most of our analysis, it will not matter in a significant way. If the soft statute reveals information, be it about the world at large or about future congressional action, that is enough to generate the effects we note.
128. William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 528-29, 532 (1992).
129. See Ethan Bueno de Mesquita & Dimitri Landa, Transparency and Clarity of Responsibility (Sept. 25, 2007) (unpublished manuscript, on file with author) (arguing that accurate inferences about a given institution's views turn on clarity - the ability to infer which actor is making a statement - and transparency - the ability to infer actual views from a public statement).
130. Cf. Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. 2 (2008) (surveying legislative and agency contexts in which higher-cost actions are more credible).
131. 451 U.S. 1 (1981);
132. Susan Rose-Ackerman, Judicial Review and the Power of the Purse, 12 INT'L REV. L. & ECON. 191, 205-06 (1992).
133. Pennhurst, 451 U.S. at 31-32.
134. Rose-Ackerman, supra note 95, at 206.
135. Id. at 192.
136. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 443-45 (1985).
137. See, e.g., JAMES LESLIE BRIERLY, THE BASIS OF OBLIGATION IN INTERNATIONAL LAW AND OTHER PAPERS 9-18 (1958) (discussing the consent theory).
138. See Prosper Weil, Towards Relative Normativity in International Law?, 11 AM. J. INT'LL. 413, 416-17 (1983).
139. See H.R. Con. Res. 208, 106th Cong. (1999) (enacted) (expressing the sense of Congress that "there should be no increase in federal taxes in order to fund additional government spending").
140. See S. Res. 112, 103d Cong. (1993) (enacted) ("[u]rging sanctions to be imposed against the Burmese government").
141. See S. Res. 156, 103d Cong. (1993) (expressing doubt about further need for emergency unemployment payments and urging the administration to propose legislation to reform the current unemployment insurance system).
142. We note again the insight from the expressive-law literature that a hard statute can affect behavior, even if it does not create sanctions, by creating a focal point. See McAdams, supra note 14. The same argument can be made about soft statutes even if no one expects them to anticipate enactment of a hard statute.
143. Cf. Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 71, 110-19 (2006) (discussing extensive mechanisms of congressional control of administration);
144. H. Lee Watson, Commentary, Congress Steps Out: A Look at Congressional Control of the Executive, 63 CAL. L. REV. 983 (1975) (same).
145. 151 CONG. REC. S7033-37 (daily ed. June 22, 2005) (expressing the sense of the Senate on climate change);
146. Nicholas DiMascio, Note, Credit Where Credit Is Due: The Legal Treatment of Early Greenhouse Gas Emissions Reductions, 56 DUKE L.J. 1587, 1588-90 (2007).
147. DiMascio, supra note 107, at 1592.
148. See John M. Broder, Senate Panel Passes Bill to Limit Greenhouse Gases, N.Y. TIMES, Dec. 6, 2007, at A39.
149. See, e.g., S. Res. 260, 108th Cong. (2003) ("[expressing the sense of the Senate that the Secretary of Health and Human Services should take action to remove dietary supplements containing ephedrine alkaloids from the market");
150. S. Res. 127, 108th Cong. (2003) ("[e]xpressing the sense of the Senate that the Secretary of Agriculture should reduce the interest rate on loans to processors of sugar beets and sugarcane by 1 percent to a rate equal to the cost of borrowing to conform to the intent of Congress");
151. S. Res. 6.1, 107th Cong. (2001) ("[e]xpressing the sense of the Senate that the Secretary of Veterans Affairs should recognize board certifications from the American Association of Physician Specialists, Inc., for purposes of the payment of special pay by the Veterans Health Administration");
152. S. Res. 159, 103d Cong. (1993) (expressing the sense of the Senate that the Department of Labor should fund states' worker profiling programs).
153. S. Res. 21, 40th Leg., 1985 Okla. Sess. Laws 1694. See generally Wyoming v. Oklahoma, 502 U.S. 437, 443 (1992).
154. S. Res. 82, 41st Leg., 1988 Okla. Sess. Laws 1915.
155. 343 U.S. 579 (1952).
156. Id. at 635 (Jackson, J., concurring);
157. see also David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb - Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689 (2008) (examining whether or when the President should act in contravention of congressional limitations).
158. Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
159. Id.
160. Id. (footnotes omitted).
161. Cf. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 193-95 (1994) (discussing legislative veto-like mechanism to disapprove executive action in fields with ambiguous constitutional authority).
162. H.R. Con. Res. 33, 110th Cong. (2007).
163. S. Res. 303, 110th Cong. (2007);
164. S. Res. 302, 110th Cong. (2007).
165. S. Res. 61, 104th Cong. (1995) ("[I]t is the sense of the Senate that (1) the Constitution grants to the President the authority to veto individual items of appropriation; and (2) the President should exercise that constitutional authority to veto individual items of appropriation without awaiting the enactment of additional authorization.").
166. Beyond these contemporary examples, it also bears mention that one of the major targets of concurrent resolutions historically was foreign policy. See Buckwalter, supra note 17. Many of these efforts tried to use soft statutes as mechanisms of hard law by making authorization, implementation, or termination of previously enacted statutes a condition of subsequently enacted concurrent resolutions. For example, the Neutrality Act of 1939 allowed either the President "or Congress by concurrent resolution to determine the existence of state of war between foreign states." Ch. 2, 54 Stat. 4 (1939). The soft statute in this scenario is like the legislative veto; it seeks to make hard law using the soft-statute mechanism. Like the legislative veto, these efforts are hybrid mechanisms in our scheme. They comply with statutory procedural requirements, but arguably are not constitutional procedural requirements.
167. Cf. Posner & Vermeule, supra note 1 (discussing how Congress and the President assert and defend their constitutional roles against each other).
168. S. Con. Res. 35, 104th Cong. (1995).
169. S. Res. 225, 104th Cong. (1996).
170. H.R. Con. Res. 286, 107th Cong. (2001);
171. see also H.R. Con. Res. 460, 107th Cong. (2002) ("Resolved by the House of Representatives (the Senate concurring), That it is the sense of Congress that the President may order acts of war against a foreign or other entity only in the following circumstances: in compliance with a treaty obligation or to repel a military attack against United States territory, possessions, or Armed Forces engaged in peaceful maneuvers; to participate in humanitarian rescue operations; or in response to a declaration, or resolution of prior specific approval by a majority of the Members of each House of Congress.").
172. H.R. Con. Res. 473, 107th Cong. (2002) ("Resolved by the House of Representatives (the Senate concurring), That the United States should work through the United Nations to seek to resolve the matter of ensuring that Iraq is not developing weapons of mass destruction, through mechanisms such as the resumption of weapons inspections, negotiation, enquiry, mediation, regional arrangements, and other peaceful means.").
173. See supra Part I.C.2.
174. See Charles L. Black, Jr., Some Thoughts on the Veto, 40 LAW & CONTEMP. PROBS. 87, 99 (1976).
175. 462 U.S. 919 (1983).
176. See 60 Fed. Reg. 53,922 (Oct. 18, 1995).
177. H.R. Con. Res. 80, 105th Cong. (1997);
178. Fed. Reg. 63,756, 63,758 (1997);
179. see also S. Con. Res. 52, 105th Cong. (1997) (supporting retention of the "all or virtually all" standard).
180. See 62 Fed. Reg. 63,756 (Dec. 2, 1997) (discussing H.R. Con. Res. 80, 105th Cong. (1997)).
181. H.R. Con. Res. 331, 100th Cong. (1988).
182. Final Agency Policy for Government-to-Government Relations with American. Indian and Alaska Native Tribal Governments, Part VI, 64 Fed. Reg. 2096 (Jan. 12, 1999).
183. S. Con. Res. 63, 104th Cong. (1996) (enacted).
184. Hood Compensation Program, 64 Fed. Reg. 47,358 (Aug. 31, 1999).
185. See S. Con. Res. 17, 102d Cong. (1992) (55 cosponsors);
186. H.R. Con. Res. 92, 102d Cong. (1991) (236 cosponsors from both parties).
187. Powered Industrial Truck Operator Training, 60 Fed. Reg. 13, 782 (proposed Mar. 14, 1995) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, and 1918).
188. See also the examples in supra note 109.
189. See, e.g., Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 166 (1984).
190. But see Gibson, supra note 16 (arguing that subsequently passed interpretive resolutions should not control judicial interpretation because this would allow Congress to amend or repeal prior statute without signature of the President and interpretation of the law is a judicial rather than legislative function).
191. See Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring); Hirschey v. FERC, 777 F.2d 1, 7-8 (D.C. Cir. 1985);
192. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997).
193. See generally Daniel A. Färber & Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423 (1988) (discussing judges' and scholars' concern about the extent to which legislative history reflects a coherent congressional view).
194. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845 (1992) (arguing that legislative history can reveal legislative intent or purpose and resolve statutory ambiguity).
195. This line of argument sets aside scholars and judges who do not think the intent of the legislature is relevant for statutory interpretation.
196. The closest example we have found is S. Con. Res. 107, 81st Cong, (as passed by Senate, Sept. 12, 1950), which was passed by the Senate within sixty days of the enactment of the G.I. Bill of Rights, Pub. L. No. 610, 64 Stat. 336 (1950),
197. and would apparently have passed the House shortly thereafter, but for a congressional recess. The resolution purported to clarify the intent of the enacting legislature with respect to interpretation of the act. See Gibson, supra note 16, at 421-22 (discussing statute and resolution);
198. id. at 479 ("During the past forty years at least, [1910-1950] there have been very few congressional attempts, by concurrent resolution, to construe federal statutes.").
199. Statement on Signing the Postal Accountability and Enhancement Act, 42 WEEKLY COMP. PRES. DOC. 2196 (Dec. 20, 2006).
200. S. Res. 22, 110th Cong. (2007). The debate concerned the Postal Accountability and Enhancement Act, Pub. L. No. 109-435, 120 Stat. 3198 (2006).
201. H.R. Res. 190, 98th Cong. (1983), 129 CONG. REC. H10100 (daily ed. Nov. 16, 1983) (declaring that Title IX intended institution-wide rather than program-specific prohibitions on discrimination on the basis of sex). Under the "program-specific" approach, receipt of federal funds would trigger Title IX's obligations only within cabined programs or departments. The "institution-wide" approach implies that the receipt of federal funds by any subdivision of the institution or university triggers obligations for the entire institution.
202. See William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 96 (1988) ('Thus, nonbinding resolutions, passed by both Houses of Congress but not presented to the President, are not formally entitled to authoritative weight in statutory interpretation.");
203. see also John C. Grabow, Congressional Silence and the Search for Legislative Intent: A Venture into "Speculative Unrealities", 64 B.U. L. REV. 737, 748 (1985) (noting that the Supreme Court has shown great reluctance to give weight to subsequent resolutions for construction of earlier statutes, and discussing the failure of the Grove City College Court even to mention a subsequent concurrent resolution that spoke directly to whether Title IX was program-specific or institution-wide).
204. But see Butler v. U.S. Dep't of Agric., 826 F.2d 409, 413 n.6 (5th Cir. 1987);
205. see also N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535 (1982);
206. Cannon, v. Univ. of Chi., 441 U.S. 677, 686 n.7 (1979);
207. F.H.E. Oil Co. v. Comm'r, 150 F.2d 857, 858 (1945) ("The Resolution . . . does not make law, or change the law made by a previous Congress or President. . . . As an expression of opinion on a point of law it would. . . . be entitled to most respectful consideration by the courts....").
208. United States v. Price, 361 U.S. 304, 313 (1960);
209. see also Massachusetts v. EPA, 127 S. Ct. 1438, 1461 n.27 (2007) (quoting Price);
210. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 355 (1998) (citing Price);
211. Hagen v. Utah, 5.10 U.S. 399, 420 (1994) ("The subsequent history is less illuminating than the contemporaneous evidence");
212. Andrus v. Shell Oil Co., 446 U.S. 657, 666 n.8 (1980) ("[W]hile arguments predicated upon subsequent congressional actions must be weighed with extreme care, they should not be rejected out of hand as a source that a court may consider in the search for legislative intent.");
213. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 411 n.11 (1979) (noting that isolated statements made by members of Congress after the enactment of a statute cannot substitute for legislative intent at the time of enactment);
214. Cobell v. Norton, 428 F.3d 1070, 1075 (D.C. Cir. 2005) ("[P]ost-enactment legislative history is not only oxymoronic but inherently entitled to little weight.");
215. Eskridge, supra note 149, at 95 (quoting Price).
216. For an earlier attempt to use a concurrent resolution to influence interpretation of a previously enacted statute, see S. Con. Res. 4, 69th Cong, (as passed Jan. 9, 1928), interpreting the Tariff Act of 1922, 42 Stat. 858 (1922), such that "with respect to imported broken rice, 'broken rice' shall include only the class 'brewers' milled rice,' as specified in the united standards for milled rice." Interestingly, the House refused to enact the concurrent resolution, stating in House Resolution 92 that the proposed concurrent resolution "contravenes the first clause of the seventh section of the first article of the Constitution of the United States." H. Res. 92, 70th Cong. 2d Sess. (Jan. 16, 1928);
217. see also Gibson, supra note 16, at 480 (discussing interaction between the House and Senate on the issue).
218. See Eskridge, supra note 149;
219. Daniel A. Färber, Statutory Interpretation, Legislative Inaction, and Civil Rights, 87 MICH. L. REV. 2 (1988).
220. N. Haven Bd. of Educ., 456 U.S. at 535.
221. See generally William N. Eskridge, Jr., Post-Enactment Legislative Signals, 57 LAW & CONTEMP. PROBS. 75 (1994) (discussing legislative inaction, as a ratification of statutory precedents).
222. Eskridge, supra note 149, at 69.
223. See Eskridge, supra note 149, at 95-108 (surveying range of formalist, realist, and systemic problems with inferring legislative intent from inaction).
224. But see Farber, supra note 151, at 10 (noting that subsequent legislative silence is informative of approval, even if not perfectly informative).
225. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989).
226. See Mass. Credit Union Share Ins. v. Nat'l. Credit Union Admin., 693 F. Supp. 1225, 1230-31 (D.D.C. 1988).
227. For a similar proposal, see Greene, supra note 118. Greene argues in. favor of allowing concurrent resolutions to block the exercise of the presidential powers exercised pursuant to an implicit delegation.
228. For a discussion of legislative incentives to tell the truth, see McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 LAW & CONTEMP. PROBS. 3 (1994) [hereinafter McNollgast, Legislative Intent];
229. McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705 (1992) [hereinafter McNollgast, Positive Canons].
230. Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162 (2002);
231. Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027 (2002).
232. McNollgast, Positive Canons, supra note 157.
233. 547 U.S. 410, 432 n.4 (2006) (Sauter, J., dissenting).
234. Id.
235. H.R. Res. 190, 98th Cong. (1983).
236. S. Con. Res. 575, 81st Leg., 2d Reg. Sess. (Mich. 1982). The concurrent resolution was adopted by the state senate on April 1, 1982, and by the state house on May 18, 1982. 1982 House J. 1262; 1982 Senate J. 626, 706-707;
237. see Gen. Motors Corp. v. Romein, 503 U.S. 181, 184 (1992).
238. See Marcucilli v. Boardwalk Builders, No. 99C-02-007, 2000 Del. Super. LEXIS 137, at *16 (Del. Super Ct. Apr. 13, 2000) (discussing the repeal of the Automobile Guest Statute by the Delaware General Assembly and the General Assembly's subsequent passage of the concurrent resolution stating that the repeal would not be applied retroactively).
239. 495 A.2d 1132 (Del. 1985).
240. Id. at 1133. Other state courts disagree.
241. See State v. Barnes, 45 P.2d 293, 297 (Idaho 1935) (Morgan, J., concurring) ("It is not, in the Constitution, anywhere directed or permitted that the Legislature, having enacted a law, shall dictate the interpretation or construction to be placed upon it.").
242. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 267-69 (2006).
243. See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 200 (2003) ("History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.").
244. See Daniel A. Frber, Legislative Constitutionalism in a System of Judicial Supremacy, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 431, 436 (Richard W. Bauman & Tsvi Kahana eds., 2006).
245. See id. at 443;
246. Mark Tushnet, Non-Judicial Review, 40 HARV. J. ON LEGIS. 453 (2003).
247. See Baker v. Carr, 369 U.S. 186 (1962) (discussing justifications for and applications of political question doctrine).
248. For example, the enrolled-bill rule dates to Marshall Field & Co. v. Clark, 143 U.S. 649, 672-73 (1892) (holding that the judiciary must treat the attestations of "the two houses, through their presiding officers" as "conclusive evidence that [a bill] was passed by Congress").
249. See also Pub. Citizen v. U.S. Dist. Court, 486 F.3d 1342 (D.C. Cir. 2007) (declining to review whether passage of different versions of a bill by House and Senate violated constitutional requirements).
250. But see United States v. Mufioz-Flores, 495 U.S. 385, 387-88 (1990) (holding a special assessment statute did not violate the Origination Clause on grounds it was not a bill for raising revenue).
251. Justice Scalia concurred in the judgment, applying Marshall Field's enrolled-bill rule. Id. at 408-09 (Scalia, J., concurring).
252. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999);
253. ADRIAN VERMEULE, MECHANISMS OF DEMOCRACY: INSTITUTIONAL DESIGN WRIT SMALL (2007);
254. Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 STAN. L. REV. 585 (1975);
255. Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 DUKE L.J. 1277 (2001);
256. see also Neal Kumar Katyal, Legislative Constitutional Interpretation, 50 DUKE L.J. 1335 (2001) (arguing that the legislature should use mechanisms of advice and consent or impeachment for purposes of constitutional interpretation).
257. Garrett & Vermeule, supra note 173;
258. Keith E. Whittington et al, The Constitution and Congressional Committees: 1971-2000, in THE LEAST EXAMINED BRANCH, supra note 169, at 396.
259. Katyal, supra note 173.
260. That is, if Congress passes a statute of dubious constitutionality, the fact of enactment should be taken as evidence that the Constitution permits the statute. See, e.g., Mark Tushnet, Interpretation in Legislatures and Courts: Incentives and Institutional Design, in THE LEAST EXAMINED BRANCH, supra note 169, at 355. In the same volume, Daniel A. Färber describes settings in which the legislature exercises constitutional power that is not reviewed by courts (e.g., impeachment and regulation of internal functions of the legislature); therefore, the legislature has practical final say.
261. Farber, supra note 169, at 431, 436.
262. As proposed by Garrett & Vermeule, supra note 173, at 1308.
263. For a similar proposal, see Greene, supra note 118 (advocating use of concurrent resolutions to negate some presidential powers, drawing on Justice Jackson's Youngstown concurrence).
264. Other mechanisms exist as well. The House and Senate precedents are in this vein; they contain legislative precedents, viewed as more or less binding, on procedures used to generate legislation.
265. See generally CLARENCE CANNON, CANNON'S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES (U.S. Gov't Printing Office ed. 1936);
266. ASHER HINDS, HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES (U.S. Gov't Printing Office ed. 1936).
267. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding practice of paying legislative chaplains despite Establishment Clause, partially because practice dates back to first Congress).
268. Garrett & Vermeule, supra note 173, at 1307-09.
269. See Woodson v. Murdock, 89 U.S. 351 (1874).
270. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 197 (1970).
271. H.R. Con. Res. 6, 110th Cong. (2007).
272. H.R. Res. 372, 110th Cong. (2007).
273. See Postal Accountability and Enhancement Act, Pub. L. No. 109-435, 120 Stat. 3198 (2006);
274. S. Res. 22, 110th Cong., CONG. REC. S394-95 (2007).
275. H.R. Con. Res. 27, 101st Cong. (1989) (expressing the "sense of the Congress that the Constitution provides that all individual citizens have the right to keep and bear arms, which right supersedes the power and authority of any government").
276. See H.R. Con. Res. 194, 109th Cong. (2005) (display of Ten Commandments in public buildings does not violate the First Amendment to the Constitution of the United States);
277. H.R. Con. Res. 428, 107th Cong. (2002) (recitation of pledge of allegiance in public schools is constitutional under the First Amendment);
278. H.R. Con. Res. 199, 106th Cong. (1999) (prayers at public schools and sporting events "are constitutional under the First Amendment to the Constitution");
279. H.R. Con. Res. 294, 103d Cong. (1994) (Department of Housing and Urban Development should not interfere with exercise of free-speech rights);
280. H.R. Con. Res. 35, 101st Cong. (1989) ("public desecration of the United States flag is not considered symbolic speech under the first amendment to the Constitution").
281. See H.R. Con. Res. 299, 105th Cong. (1998) (specifying criteria for executive departments to follow when preempting state law consistent with the Constitution);
282. H.R. Con. Res. 161, 101st Cong. (1989) (expressing the "sense of the Congress that it is in the interest of a viable Federal system of Government that primary regulatory authority over alcohol beverages within their borders shall remain with the States").
283. See H.R. Con. Res. 195, 101st Cong. (1989) (expressing the "sense of the Congress that illegal aliens should not be counted in the 1990 decennial census for purposes of congressional reapportionment").
284. See H.R. Con. Res. .160, 102d Cong. (1991) (resolving, in response to Rust v. Sullivan, 500 U.S. 173 (1991), that "no Federal employee . . . may be denied freedom of speech").
285. See H.R. Con. Res. 102, 108th Cong. (2003) ("[Pursuant to Article I, Section 8 of the Constitution of the United States, Congress has the sole and exclusive power to declare war.").
286. See H.R. Con. Res. 368, 107th Cong. (2002) (expressing the sense of Congress that compulsory military service would be "violative of individual liberties protected by the Constitution");
287. H.R. Con. Res. 49, 107th Cong. (2001) ("[T]reaty power of the President does not extend beyond the enumerated powers of the Federal Government, but is limited by the Constitution, and any exercise of such Executive power inconsistent with the Constitution shall be of no legal force or effect").
288. Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. Off. Legal Counsel 28 (1987).
289. 134 CONG. REC. S6700-01 (1988) (on the treaty between the U.S. and the Soviet Union on the elimination of intermediate-range and shorter-range missiles).
290. Message to the Senate on the Soviet-United States Intermediate-Range Nuclear Force Treaty, 24 WEEKLY COMP. PRES. DOC. 779, 780 (June 13, 1988).
291. INS v. Chadha, 462 U.S. 919 (1983).
292. Clinton v. New York, 524 U.S. 417 (1998).
293. U.S. CONST. art. I, § 7, cl. 3.
294. See generally Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned, 83 TEX. L. REV. 1265 (2005) (providing an exhaustive review of history and debate surrounding the Residual Presentment Clause).
295. U.S. CONST, art. I, § 7, cl. 3.
296. See Chadha, 462 U.S. at 946-47 ("Presentment to the President and the Presidential veto were considered so imperative that the draftsmen took special, pains to assure that these requirements could not be circumvented. During the final debate on Art. I, § 7, cl. 2, James Madison expressed concern that it might easily be evaded by the simple expedient of calling a proposed law a 'resolution' or 'vote' rather than a 'bill' As a consequence, Art. I, § 7, cl. 3, . . . was added.") (internal citations omitted);
297. see also 2 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 304-05 (1911): Mr. Randolph, having thrown into a new form the .motion, putting votes, Resolution &c. on a footing with Bills, renewed it as follows. "Every order resolution or vote, to which the concurrence of the Senate & House of Reps, may be necessary (except on a question of adjournment and in the cases hereinafter mentioned) shall be presented to the President for his revision; and before the same shall have force shall be approved by him, or being disapproved by him shall be repassed by the Senate & House of Reps according to the rules & limitations prescribed in the case of a Bill[.]" Mr. Sherman thought it unnecessary, except as to votes taking money out of the Treasury which might be provided for in another place. . . . The Amendment was made a Section 14[] of Art VI.
298. See generally 2 THE FOUNDERS' CONSTITUTION 388-89, 399,404 (Philip B. Kurland & Ralph Lerner eds., 1987);
299. Michael B. Rappaport, The President's Veto and the Constitution, 87 NW. U. L. REV. 735, 753-55 (1993) (analyzing various .interpretations of the Residual Presentment Clause to argue against the constitutionality of the implicit selective veto).
300. Tillman, supra note 199.
301. See H. Lee Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 CAL. L. REV. 983,1051, 1072-75 (1975) (discussing the clause's implications for what he terms "extralegislative congressional action").
302. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).
303. See Doyle W. Buckwalter, The Congressional Concurrent Resolution: A Search for Foreign Policy Influence, 14 MIDWEST J. POL. SCI. 434, 437 (1970).
304. S. REP. NO. 54-1335 (1897).
305. See Howard White, The Concurrent Resolution in Congress, 35 AM. POL. SCI. REV. 886 (1941).
306. IA NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 29:3 n.1 (6th ed. 2000).
307. 478 U.S. 714, 755-56 (1986).
308. WILLIAM HOLMES BROWN, CONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES 176 (1991).
309. S. REP. NO. 54-1335, at 8.
310. Id.
311. One concern here is self-dealing. Because the legislature is interpreting a constitutional restriction on legislative behavior, the legislature might advance a self-serving interpretation.
312. Cf. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2102-03 (2002) (arguing that a statute establishing federal rules of statutory interpretation would accomplish similar ends).
313. Id. at 2086.
314. Id. at 2148-50.
315. The distinction between dictum and holding is famously contested; injudicial opinions, hard law blurs into soft law, and in virtually every case the boundaries are open to debate.
316. See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996).
317. See generally Young, supra note 1 (canvassing various materials, such as statutes, executive materials, and legal practices outside of formal constitution, that regulate practice in. the way that formal constitutions do).
318. See generally Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 907-11 (1990) (discussing settings in which the President may deviate from a statute's requirements or judicial judgments because he disagrees about what the Constitution requires);
319. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1270-71, 1286-92 (1996) (offering textual reading of the Constitution granting presidential power to interpret the Constitution).
320. See Posner & Vermeule, supra note 1.
321. INDIA CONST. art. 37.
322. INDIA CONST, arts. 39-41.
323. See, e.g., Tellis v. Bombay Mun. Corp., A.I.R. 1986 S.C. 180 (holding that municipal government must offer alternative dwellings to squatters evicted from, public property).
324. MICHELINE R. ISHAY, THE HISTORY OF HUMAN RIGHTS 221-29 (2004).
325. See HO, supra note 2.
326. For a discussion of this process, see Anthea Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AM. J. INT'L L. 757 (2001).
327. See COMMITMENT AND COMPLIANCE, supra note 2.
328. See Jonathan I. Charney, Customary International Law in the Nicaragua Case Judgment on the Merits, 1988 HAGUE Y.B. INT'L L. 16, 24; Weil, supra note 101, at 416-17.
329. See GOLDSMITH & POSNER, supra note 2.
330. HERSCH LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 397-98 (1950).
331. For other criticisms of international soft law, see Weil, supra note 101, at 416-17.
332. See supra Part II.C.2.
333. Bowsher v. Synar, 478 U.S. 714, 755-56 (1986).
334. See Charney, supra note 229, at 24.
335. See POSNER, supra note 14, at 219-22.