Recusal legislating: Congress's answer to institutional stalemate

Harvard Journal on Legislation

Volumn 48, Issue 1, 2011, Pages 1-48

  Teter, Michael J ^a  

^a POMONA COLLEGE   (United States)

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EID: 79951566158     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (445)

1. See, e.g., Jeffrey M. Jones, Perceived Inaction Largely Behind Low Ratings of Congress, GALLUP NEWS SERVICE, Feb. 5, 2007, http://www.gallup.com/poll/28600/perceived-inactionlargely-behind-low-ratings-congress.aspx.
2. See, e.g., William Anderson et al., The Keys to Legislative Success in the U.S. House of Representatives, 28 LEGIS. STUD. Q. 357, 359-60 (2003).
3. NEIL MACNEIL, FORGE OF DEMOCRACY 2 (1963) (quoting George Mason).
4. See, e.g., THE FEDERALIST NO. 63, at 362 (James Madison) (Kathleen M. Sullivan ed.,2009) (the Senate is "such an institution that may be sometimes necessary, as a defence to the people against their own temporary errors and delusions")
5. THOMAS E. PATTERSON, THE AMERICAN DEMOCRACY 439 (1990)
6. THE RECORDS OF THE FEDERAL CONVENTION OF 1787 48 (Max Farrand ed., 1966) [hereinafter 1 RECORDS] (Robert Sherman stating: "The people. want [for] information and are constantly liable to be misled")
7. id. (Eldridge Gerry referring to the people as "dupes of pretended patriots")
8. id. at 514 (Gouverneur Morris stating: "We should remember that the people never act from reason alone. The rich will take advantage of their passions and make these the instruments for oppressing them")
9. GARY WASSERMAN, THE BASICS OF AMERICAN POLITICS 42 (9th ed. 2000)
10. STEPHEN J. WAYNE ET AL., THE POLITICS OF AMERICAN GOVERNMENT 466 (2d ed. 1997).
11. THE FEDERALIST NO. 62, at 357 (James Madison) (Kathleen M. Sullivan ed., 2009).
12. See Proceedings of Commissioners to Remedy Defects of the Federal Government (Sept. 14, 1786), http://avalon.law.yale.edu/18th_century/annapoli.asp
13. See generally 1 1787: DRAFTING THE U.S. CONSTITUTION 84-157 (Wilbourn E. Benton ed., 1986) (providing Convention notes discussing the weaknesses of the Articles of Confederation).
14. See, e.g., 1 RECORDS, supra note 4, at 449 (James Madison speaking of giving the gov- ernment "sufficient energy").
15. Scholars have devoted considerable attention to the defects of our constitutionally-prescribed legislative structure and tradition-driven congressional norms.
16. See, e.g., OBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2002)
17. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006)
18. THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK (2006)
19. see also Symposium, The Most Disparaged Branch: The Role of Congress in the Twenty-First Century, 89 B.U. L. REV. 331 (2009).
20. See, e.g., Barbara Sinclair, Question: What's Wrong with Congress? Answer: It's a Democratic Legislature, 89 B.U. L. REV. 387, 387 (2009) (citing complaints about congressional structures preventing public-minded legislation).
21. Sinclair, supra note 9, at 387.
22. Most often used in the context of trade legislation, fast-track rules establish expedited procedures for congressional consideration of policy to facilitate its enactment. In the trade setting, for example, fast-track legislation grants the President authority to negotiate trade agreements that Congress then must approve or disapprove within a designated timeframe and without amendment or filibuster.
23. See, e.g., Trade Act of 2002 §§ 2103-05, 19 U.S.C. §§ 3803-05 (2006).
24. WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS 288-99, 312 (7th ed. 2007) (discussing the many ways in which Congress exercises its oversight authority).
25. For example, consider the work of the National Commission on Terrorist Attacks Upon the United States (the "9/11 Commission"). Congress created the 9/11 Commission to examine and report on the events of September 11, 2001, and to make recommendations for corrective measures
26. See Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, 116 Stat. 2383, 2408-13 (2002) (cited in 6 U.S.C. § 101 note (2006)).
27. Even as Congress heaped praise on the work of the 9/11 Commission, most of its policy recommendations languished.
28. See, e.g., Dan Eggen, U.S. is Given Failing Grades by 9/11 Panel, WASH. POST, Dec. 6, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/12/05/AR2005120500097.html.
29. Pub. L. No. 100-526, 102 Stat. 2623 (1988) (current version at 10 U.S.C. § 2687 note (2006)). Although the correct acronym would seem to be BRCA, the Pentagon apparently preferred "BRAC."
30. See U.S. Dep't of Def., BRAC 2005 - Definitions (2005), http://www.defenselink.mil/brac/definitions_brac2005.html.
31. Act of June 19, 1934, ch. 651, §§ 1-2, 48 Stat. 1064 (codified at 28 U.S.C. § 2072 (2006)).
32. Pub. L. No. 90-206, 81 Stat. 613, 642-45 (1967) (codified as amended at 2 U.S.C. §§ 351-64 (2006)).
33. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV. 1441, 1444-48 (2008) [hereinafter Eskridge, Vetogates].
34. Vetogates are procedural doors through which a bill must pass to become law. Each of these "gates" presents an opportunity for opponents of the measure to kill the bill rather than allowing it to move along to the next stage of the process.
35. See WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 66-68 (4th ed. 2007) [hereinafter ESKRIDGE ET AL., CASES AND MATERIALS].
36. Eskridge, Vetogates, supra note 17, at 1441-42.
37. OLESZEK, supra note 12, at 82.
38. Id. at 90.
39. A chair, demonstrating the full extent of his authority, has even gone so far as to summon the Capitol police to remove members of the other party from the committee's library.
40. Id. at 164-65.
41. Id. at 90-91.
42. Id. at 89.
43. RANDALL B. RIPLEY, CONGRESS: PROCESS AND POLICY 75 (1975).
44. Eskridge, Vetogates, supra note 17, at 1445.
45. OLESZEK, supra note 12, at 153, 162-66, 182-84, 230-33 (describing the floor proce- dures of both chambers of Congress).
46. Id. at 203-04 (discussing the use of unanimous consent agreements).
47. Id. at 237-38 (summarizing the filibuster).
48. Id. at 240-43.
49. See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 116-17 (1974) (describing how electoral needs do not incentivize mobilization of "legislation bereft of particularized benefits"). This fundamental point will be discussed in greater detail in later sections of the article.
50. See infra notes 257-264 and accompanying text.
51. MAYHEW, supra note 29, at 52-53.
52. Mayhew notes that as a result of their focus on reelection, the three primary activities in which legislators engage are credit-claiming, position-taking, and advertising.
53. Id. at 49-61.
54. See R. Kent Weaver, The Politics of Blame Avoidance, 6 J. OF PUB. POL'Y 371, 373-77 (1986).
55. Id. at 384 (concluding that one way members seek to avoid blame in such circumstances is to keep an issue off the agenda).
56. OLESZEK, supra note 12, at 324.
57. MAYHEW, supra note 29, at 82.
58. Party leaders, however, have a strong incentive to high- light differences between the two parties and, therefore, often do see the legislative process as a zero-sum game.
59. See OLESZEK, supra note 12, at 324 (quoting former Majority Leader Tom Delay's (R-Tex.) 2006 farewell speech to the House).
60. MAYHEW, supra note 29, at 88.
61. As one lawmaker described it during the BRAC debate, the reason for the delegation of authority to the Commission "is because we know that Congress will not on its own permit bases to be closed. Experience shows that. We all know that, because we do not have the political courage to vote against the interests of our own districts in favor of the national interest, and, of course, there is an awful lot of backscratching that goes on." 134 CONG. REC. 17,065-66 (1988) (statement of Rep. Kyl (R-Ariz.)) (emphasis added).
62. See CONG. BUDGET OFFICE, MONTHLY BUDGET REVIEW FISCAL YEAR 2009, available at http://www.cbo.gov/ftpdocs/106xx/doc10640/10-2009-MBR.pdf.
63. See U.S. DEP'T OF DEF., BASE STRUCTURE REPORT FISCAL YEAR 2009 BASELINE, available at http://www.defense.gov/pubs/pdfs/2009Baseline.pdf
64. COLTON C. CAMPBELL, DISCHARGING CONGRESS: GOVERNMENT BY COMMISSION 115 (2001)
65. Charlotte Twight, Institutional Underpinnings of Parochialism: The Case of Military Base Closures, 9 Cato J. 73, 75-76 (1989).
66. CAMPBELL, supra note 38 at 115.
67. DAVID SORENSON & LAWRENCE KORB, MILITARY BASE CLOSURES 14 (2007).
68. Id. at 15.
69. Id. at 14-15.
70. Id. at 14.
71. Id. at 15.
72. See Natalie Hanlon, Military Base Closings: A Study of Government by Commission, 62 COLO. L. REV. 331, 333 (1991).
73. SORENSON & KORB, supra note 40, at 10 (bases provide direct employment, contract opportunities, school funds, and a customer base for local businesses).
74. Consider Lawton, Oklahoma: the city has a population of 100,000, over 21% of which is employed at nearby Fort Sill. Moreover, 43% of children in the Lawton school district come from military families, and the school system itself receives $3.4 million a year to offset costs associated with educating these children.
75. See, e.g., MATTHEW KAMBROD, LOBBYING FOR DEFENSE 39-41 (2007)
76. KENNETH MAYER, THE BASE REALIGNMENT AND CLOSURE PROCESS: IS IT POSSIBLE TO MAKE RATIONAL POLICY? 7 (2007), http://www.nyu.edu/brademas/pdf/Mayer-Defense%20FINAL.pdf ("Members believed they received substantial credit from defending 'their' bases.").
77. See, e.g., TADLOCK COWAN & BAIRD WEBEL, CONG. RESEARCH SERV., RS22147, MILITARY BASE CLOSURES: SOCIOECONOMIC IMPACTS (2005) (studying the effect of previous BRAC base closures on communities).
78. See, e.g., Hanlon, supra note 45, at 334.
79. CAMPBELL, supra note 38, at 115.
80. Military Construction Authorization Act of 1966, Pub. L. No. 89-188, 79 Stat. 793 (1966) (codified in scattered sections of 10 U.S.C., 42 U.S.C., 50 App. U.S.C.).
81. 79 Stat. at 818-19 (codified in scattered sections of 10 U.S.C., 42 U.S.C., and 50 App. U.S.C.)
82. SORENSON & KORB, supra note 40 (noting that 94 bases closed during and after Robert McNamara's tenure as Secretary of Defense, extending into both the Ford and Nixon administrations).
83. See, e.g., 134 CONG. REC. 10,197 (1988) (statement of Sen. Levin (D-Mich.)) (noting that the passage of base closure laws was originally prompted by the politicization of base closures)
84. see also LAWRENCE BECKER, DOING THE RIGHT THING: COLLECTIVE ACTION AND PROCEDURAL CHOICE IN THE NEW LEGISLATIVE PROCESS 19-20 (2005).
85. SORENSON & KORB, supra note 40, at 15.
86. One tale, perhaps apocryphal, describes Presi- dent Johnson's trip to the city of Amarillo, Texas, ahead of the 1964 presidential election. There, the story goes, President Johnson told the city's citizens that if the city did not vote for him in the upcoming election, it would lose its air force base. When Senator Goldwater received a majority of the votes from the two counties in the region, President Johnson made good on his threat.
87. See John Kanelis, BRAC Way is Better than Old Way, AMARILLO GLOBE NEWS, May 22, 2005, http://www.amarillo.com/stories/052205/opi_1942058.shtml (recounting the belief among many in Amarillo that its air force base was closed because Randall County voted for Barry Goldwater).
88. There is also at least circumstantial evidence that base closures were used as a political tool: during his tenure, Secretary McNamara named nearly 450 bases as possible targets for closure, but only closed sixty.
89. BECKER, supra note 61 at 18-19. This suggests that the original list of targets may have been drawn broadly as a bargaining chip or implicit threat, with political objectives in mind.
90. SORENSON & KORB, supra note 40, at 15.
91. BECKER, supra note 61, at 19.
92. Military Construction and Guard and Reserve Forces Facilities Authorization Acts, Pub. L. No. 94-431, 90 Stat. 1349 (1977) (codified in scattered sections of 10 U.S.C.).
93. Revised Military Construction Bill Cleared, 32 CONG. Q. ALMANAC 311 (1976).
94. National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. § 4321 (2006)).
95. BECKER, supra note 61, at 21
96. (citing Charlotte Twight, Department of Defense Attempts to Close Military Bases: The Political Economy of Congressional Resistance, in ARMS, POLITICS AND THE ECONOMY 237, 246 (Robert Higgs ed., 1990)).
97. 134 CONG. REC. 17,060 (1988) (statement of Rep. Kyl) (noting that since 1977, Congress had not authorized closing any bases).
98. BECKER, supra note 61, at 21.
99. Kenneth R. Mayer, Closing Military Bases (Finally): Solving Collective Dilemmas Through Delegation, LEGIS. STUD. Q., Aug. 3, 1995, at 396.
100. See, e.g., 134 CONG. REC. 10,196 (1988) (statement of Sen. Dixon (D.-Ill.)).
101. See generally 134 CONG. REC. 17,056-87 (1988).
102. BECKER, supra note 61, at 23.
103. See MAYHEW, supra note 29, at 122.
104. Defense Authorization Amendments and Base Closure and Realignment Act, Pub. L. No. 100-526, 102 Stat. 2623 (1988) (current version at 10 U.S.C. § 2687 note (2006)). Congress renewed and amended the law two years later in 1990. Defense Base Closure and Realignment Act of 1990, Pub. L. No. 101-510, 104 Stat. 1808 (1990) (current version at 10 U.S.C. § 2687 note (2006)). In 2001, Congress further amended the law, authorizing new rounds of base closures by the 2005 BRAC Commission. Title XXX of the National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, 115 Stat. 1342 (2001) (current version at 10 U.S.C. § 2687 note (2006)). While these three versions of the BRAC law shared the same core features, this Article predominantly discusses the most current official version of the law. Defense Base Closure and Realignment Commission, 10 U.S.C. § 2687 note (2006).
105. Defense Base Closure and Realignment Commission § 2902(a).
106. Id. §§ 2902(c), 2912(d)(3).
107. The 2001 amendments increased the number of commission members from eight to nine. Title XXX of the National Defense Authorization Act for Fiscal Year 2002 § 2912(d)(3), 115 Stat. 1342.
108. Defense Base Closure and Realignment Commission § 2902(c)(2). The President must also designate one of the members to serve as chair of the Commission.
109. Id. § 2902(c)(3).
110. Id. § 2912(d)(4).
111. Id. § 2912(a).
112. As part of the most recent force structure plan for the 2005 round of base realignments and closures, the Pentagon was charged with assessing the "probable threats to the national security" and determining the military forces required to meet these threats for the period extending to 2025.
113. Id. § 2912(a).
114. The Pentagon was also required to submit to Congress a "comprehensive inventory of military installations world-wide."
115. Id. § 2912(b).
116. Id. §§ 2903(b), 2913(a).
117. Id. § 2913(b).
118. The law provides that: military value criteria are as follows: (1) The current and future mission capabilities and the impact on operational readiness of the total force of the Department of Defense, including the impact on joint warfighting, training, and readiness. (2) The availability and condition of land, facilities, and associated airspace (including training areas suitable for maneuver by ground, naval, or air forces throughout a diversity of climate and terrain areas and staging areas for the use of the Armed Forces in homeland defense missions) at both existing and potential receiving locations. (3) The ability to accommodate contingency, mobilization, surge, and future total force requirements at both existing and potential receiving locations to support operations and training. (4) The cost of operations and the manpower implications.
119. The BRAC law also refers to "other criteria" that must be addressed. These are: (1) The extent and timing of potential costs and savings, including the number of years, beginning with the date of completion of the closure or realignment, for the savings to exceed the costs. (2) The economic impact on existing communities in the vicinity of military installations. (3) The ability of the infrastructure of both the existing and potential receiving communities to support forces, missions, and personnel. (4) The environmental impact, including the impact of costs related to potential environmental restoration, waste management, and environmental compliance activities.
120. Id. § 2913(c).
121. Id. §§ 2913(a)(1), 2913(a)(2).
122. Id. § 2914(a).
123. Id. § 2914(d)(1).
124. Id. § 2903(d)(2)(B).
125. Id. §§ 2903(d)(2)(A), 2903(d)(3).
126. Id. § 2903(d)(3).
127. Id. §§ 2902(h), 2902(i).
128. Id. § 2902(h)(1).
129. Id. § 2903(i)(2). A "detail" is a temporary assignment of an employee from one federal agency to another. 5 U.S.C. § 3343 (2006).
130. Defense Base Closure and Realignment Commission § 2914(e)(1).
131. Id. § 2903(e)(2).
132. However, the President may disapprove some of the recommended closures and send those back to the Commission for reconsideration
133. Id. § 2903(e)(3).
134. The Commission can then prepare a revised list.
135. Id. § 2914(e)(2).
136. The President then must act (or decline to act) on the list as a package.
137. Id. § 2903(e)(5).
138. No option exists for the President to disapprove some closures and forward the remaining recommendations to Congress
139. Id. § 2903(e)(4).
140. Id. § 2904.
141. If Congress adjourns for the session during which the report is transmitted, the Pentagon is authorized to carry out the Commission's recommended closures and realignments.
142. Id. § 2904(b)(1)(B).
143. The text of the resolution must be: "That Congress disapproves the recommendations of the Defense Base Closure and Realignment Commission as submitted by the President on ___," with the blank space to be filled in with the appropriate date.
144. Id. § 2908(a)(2).
145. The title of the resolution must be "Joint resolution disapproving the recommendations of the Defense Base Closure and Realignment Commission."
146. Id. § 2908(a)(3).
147. The resolution cannot have a preamble.
148. Id. § 2908(a)(1).
149. Id. § 2908(a).
150. Id. § 2908(b).
151. Id. § 2908(c).
152. Id. § 2908(d).
153. Id. § 2908(d)(2).
154. Id. § 2908(d)(3).
155. Id. § 2908(d)(2).
156. Id. § 2908(e)(1)(A).
157. Id. § 2908(e)(1)(B)(i).
158. Id. § 2908(e)(2).
159. The chance of bicameral congressional disapproval of the package of recommendations is incredibly remote. As Congress recognized, once a list of proposed closures is released, those legislators whose bases are not on the list can breathe a huge sigh of relief and would almost certainly support the package. Moreover, legislators without a base in their district would similarly see no reason to oppose the Commission's recommendations.
160. See 134 CONG. REC. 17,080 (1988) (statement of Rep. Aspin (D-Wis.))
161. 134 CONG. REC. 17,071 (1988) (statement of Rep. Pepper (D-Fla.)).
162. Defense Base Closure and Realignment Commission §§ 2905(a), 2906.
163. See supra Part II.
164. See generally 134 CONG. REC. 17,057-87 (1988).
165. 134 CONG. REC. 17,057 (1988) (statement of Rep. Dickinson (R-Ala.)).
166. U.S. CONST. art. III, § 1.
167. 4 HARLES ALAN WRIGHT & ARTHUR P. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (3d ed. 2002).
168. Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 73, 83 (current version at 28 U.S.C. § 1652 (2006)).
169. Act of Sept. 29, 1789, ch. 21, § 2, 1 Stat. 93 (current version at 28 U.S.C. § 1652 (2006)).
170. Process Act of May 19, 1828, ch. 68, 4 Stat. 278.
171. Act of June 1, 1872, ch. 255, 17 Stat. 196, 197.
172. Cheryl L. Haas, Judicial Rulemaking: Criticisms and Cures for a System in Crisis, 70 N.Y.U. L. REV. 135, 139 (1998).
173. For a thorough account of the push for, and creation of, the Federal Rules of Civil Procedure, see Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1035-95 (1982).
174. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 ANN. REP. A.B.A. 395 (1906) [hereinafter Pound, Popular Dissatisfaction].
175. Pound continued to push for federal judicial rulemaking authority up to the enactment of the Rules Enabling Act. A key premise of his effort was the belief that federal rules of procedure should not be subjected to political pressures inherent in the legislative process.
176. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 602 (1926) [hereinafter Pound, Rule-Making Power]
177. Judicial Versus Legislative Determination of Rules of Practice and Procedure-A Symposium, 6 OR. L. REV. 36, 42-45 (1926).
178. Pound, Popular Dissatisfaction, supra note 125, at 415.
179. See The American Bar Association, Report of the Committee on Uniform Judicial Procedure, 36 ANN. REP. A.B.A. 541 (1913).
180. Burbank, supra note 124, at 1050.
181. Act of June 19, 1934, ch. 651, §§ 1-2, 48 Stat. 1064 (codified at 28 U.S.C. § 2072 (2006)).
182. 28 U.S.C. § 2072 (2006).
183. The 1934 version stated: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Supreme Court of the United States shall have the power to prescribe, by general rules, for the district courts of the United States and for the courts of the District of Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant. They shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect. SEC. 2. The court may at any time unite the general rules prescribed by it for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both: Provided, however, That in such union of rules the right of trial by jury as at common law and declared by the seventh amendment to the Constitution shall be preserved to the parties inviolate. Such united rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session.
184. Act of June 19, 1934, ch. 651, §§ 1-2, 48 Stat. 1064.
185. Congress created the Conference of Senior Circuit Judges in 1922 to serve as the chief administrative and policymaking body of the U.S. Courts. The Conference advised Congress on possible improvements in judicial administration. In 1948, the name of the group was changed to the Judicial Conference, but the body's principal functions remained unchanged.
186. Robert H. Hall, Federal Circuit Judicial Councils: A Legislative History and Revisions Needed Today, 11 GA. ST. U. L. REV. 1, 2 (1994).
187. 28 U.S.C. § 2073(a)(1) (2006).
188. 28 U.S.C. § 2073(b) (2006)
189. ADMIN. OFFICE OF THE U.S. COURTS, FEDERAL RULEMAKING: THE RULEMAKING PROCESS, A SUMMARY FOR THE BENCH AND BAR (2007), http://207.41.14.183/rules/proceduresum.htm.
190. See Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy, 87 GEO. L.J. 887, 892 (1998).
191. ADMIN. OFFICE OF THE U.S. COURTS, supra note 133.
192. 28 U.S.C. § 2074(a) (2006).
193. 28 U.S.C. § 2074(b) (2006).
194. Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 281, 301.
195. See Bone, supra note 134, at 896.
196. See, e.g., A. Leo Levin & Anthony G. Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. PA. L. REV. 1, 10 (1958)
197. Pound, Rule-Making Power, supra note 125, at 602
198. John H. Wigmore, All Legislative Rules for Judi- ciary Procedure Are Void Constitutionally, 23 ILL. L. REV. 276, 278-89 (1928).
199. The indifference of legislators stems, in part, from the fact that the public does not hold the legislature responsible for the efficient administration of the courts.
200. Levin & Amsterdam, supra, at 10.
201. Linda S. Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. REV. 795, 835 (1991) (quoting Reporter, Memorandum to Civil Rules Committee re Questions About the Rulemaking Process (Oct. 18, 1989)).
202. Id. at 842 n.246 (stating that the then-Reporter for the Advisory Committee "believe[d] that the Rules Enabling Act was designed specifically to be 'anti-democratic'").
203. Professor Mullenix goes on to quote the Reporter: The Rules Enabling Act was avowedly antidemocratic in the sense that it withdrew "procedural" law-making from the political arena and made it the activity of professional technicians. The politically responsive organs of government, the legislative and executive branches, were substantially excluded from participation in the process created by the Act, as were those familiar and important influences now often known (perhaps unjustly) by the opprobrium "special interest groups."
204. Levin & Amsterdam, supra note 144, at 10
205. Pound, Rule-Making Power, supra note 125, at 602
206. Wigmore, supra note 144, at 278.
207. Burbank, supra note 124, at 1053.
208. Bone, supra note 134, at 892.
209. Id. at 895
210. Levin & Amsterdam, supra note 144, at 38.
211. See supra Part II.
212. As Professor Paul Carrington observed, "[C]omplex technical issues of judicial practice cannot sustain attention through the political process. What is everyone's business is no one's special political concern."
213. Carrington, supra note 142, at 282.
214. Orders Re Rules of Procedure, 302 U.S. 783 (1937).
215. It is inaccurate and unwise to confuse congressional inaction with congressional support for the substance of any particular rule. As Professor Burbank explains, "The experience of the original Federal Rules of Civil Procedure before Congress provides specific support for the rejection of an argument equating congressional inaction with congressional approval."
216. Burbank, supra note 124, at 1102 n.396
217. see also Sibbach v. Wilson & Co., 312 U.S. 1, 18 (1941) (Frankfurter, J., dissenting) (stating that "[h]aving due regard to the mechanics. of Congress when the Rules were submitted, to draw any inference of tacit approval from nonaction by Congress is to appeal to unreality").
218. WRIGHT & MILLER, supra note 118, § 1007, at 48.
219. Act of Mar. 30, 1973, Pub. L. No. 93-12, 87 Stat. 9 (1973) (cited in 18 U.S.C. § 3771 note (1976)).
220. The law specifically stated that the proposed rules of evidence "shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress."
221. Unlike with the Federal Rules of Civil Procedure, Congress must now affirmatively act in order for promulgated evidentiary rules to take effect. Congress also considered this very concept when debating the BRAC law, but rejected it because of the likely consequence of politics delaying the implementation of the BRAC Commission recommendations.
222. See 134 CONG. REC. 17,079 (1988) (statement of Rep. Kasich (R-Ohio)).
223. The congressional history of the Federal Rules of Evidence shows the significance of Congress's decision to require congressional affirmation in this legislative context, as Congress has used its influence over the Rules of Evidence to pursue political rewards to the detriment of an impartial criminal justice system
224. See, e.g., Michael Teter, Acts of Emotion: Analyzing Congressional Involvement in the Federal Rules of Evidence, 58 CATH. U. L. REV. 153, 177-93 (2008).
225. 87 Stat. 9.
226. See Edward J. Imwinkelried, Draft Article V of the Federal Rules of Evidence on Privileges, One of the Most Influential Pieces of Legislation Never Enacted: The Strength of the Ingroup Loyalty of the Federal Judiciary, 58 ALA. L. REV. 41, 48-49 (2006).
227. see also COMM. ON THE JUDICIARY, FEDERAL RULES OF EVIDENCE, H.R. REP. NO. 93-52 (1973) (referencing testimony from the American College of Trial Lawyers and the National Legal Aid and Defender Association).
228. See Imwinkelried, supra note 158, at 50.
229. Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926 (1975).
230. Equal Access to Justice Act, Pub. L. No. 96-481, § 205(a), 94 Stat. 2325, 2330 (1980) (codified as amended at 5 U.S.C. § 504 (2006)).
231. See Amendments to the Federal Rules of Civil Procedure, 93 F.R.D. 255 (1982)
232. Act of Aug. 2, 1982, Pub. L. No. 97-227, 96 Stat. 246 (1982) (cited in 28 U.S.C. § 2074 note (2006)) (delaying the implementation of the rules promulgated by the Supreme Court).
233. Kent Sinclair, Service of Process: Rethinking the Theory and Procedure of Serving Process Under Federal Rule 4(c), 73 VA. L. REV. 1183, 1208 (1987).
234. Federal Rules of Civil Procedure Amendments Act of 1982, Pub. L. No. 97-462, 96 Stat. 2527 (1983) (codified as amended in scattered sections of 28 U.S.C.).
235. See FED. R. CIV. P. 35 and Advisory Committee Notes.
236. 133 CONG. REC. 16,904 (1987)
237. see also Laurens Walker, A Comprehensive Reform for Federal Civil Rulemaking, 61 GEO. WASH. L. REV. 455, 461 (1993).
238. see also Walker, supra note 167, at 462. Profes- sor Walker elaborates: Congress also amended Rule 17 and Rule 71A. Both of these amendments, however, appear to be minor. In the case of Rule 17, the Supreme Court had proposed several amendments intended to gender-neutralize the rules. The Court intended to strike the gender specific phrase "with him" in Rule 17, but the amendments as transmitted failed to include the change, and Congress corrected the apparent oversight. The amendment to Rule 71A corrected an apparent punctuation error by adding the appropriate apostrophe to "taking of the defendants' property."
239. See Mullenix, supra note 145, at 847.
240. See id. at 845-46.
241. Id. at 847.
242. Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, 102 Stat. 4642 (codified in scattered sections of 28 U.S.C.)
243. Bone, supra note 134, at 903-04.
244. Judicial Improvements and Access to Justice Act § 401, 102 Stat. at 4649 (codified at 28 U.S.C. § 2073(c)(2) (2006)).
245. § 401, 102 Stat. at 4649 (codified at 28 U.S.C. § 2073(d) (2006))
246. see also Walker, supra note 167, at 468-69.
247. William J. Hughes, Congressional Reaction to the 1993 Amendments to the Federal Rules of Civil Procedure, 18 SETON HALL LEGIS. J. 1, 3 n.9 (1993).
248. See id. at 4 & n.13.
249. Representative Carlos Moorhead (R-Cal.) introduced separate legislation on August 6, 1993, to deal with unease over changes to Rule 11. H.R. 2979, 103d Cong. (1993).
250. See Hughes, supra note 175, at 4 & n.13. The House did not act on that proposed legislation.
251. 139 Cong. Rec. H8747 (daily ed. Nov. 3, 1993).
252. Hughes, supra note 175, at 10.
253. Id. at 11 & n.40.
254. Id. at 11.
255. See, e.g., id. at 2-3.
256. This is clear from the name of the law itself: The Equal Access to Justice Act.
257. Sinclair, supra note 164, at 1208.
258. Id. at 1202-04, 1209-10.
259. See Mullenix, supra note 145, at 847 & n.271 (noting that the legislative aide subse- quently received a commendation from the American Psychological Association).
260. See Bone, supra note 134, at 903-04.
261. See Hughes, supra note 175, at 5-11.
262. WRIGHT & MILLER, supra note 118, § 1001.
263. Hughes, supra note 175, at 2-3.
264. For a listing of proposals to amend the Federal Rules of Civil Procedure considered by the Advisory Committee since 1992, see Civil Rules Suggestions Docket (Historical), UNITED STATES COURTS, http://www.uscourts.gov/rules/civil_docket.pdf (last visited Nov. 11, 2010).
265. A few lawmakers have expressed interest in amending the Rules. See, e.g., Frivolous Lawsuit Prevention Act of 2009, S. 603, 111th Cong. (2009) (seeking to amend Rule 11 to mandate sanctions for violation of the rule).
266. See, e.g., Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 FORDHAM L. REV. 497, 502-08 (1992) (recounting the history of the framing of the Constitution's Compensation Clause).
267. 2 ROBERT C. BYRD, THE SENATE 1789-89: ADDRESSES ON THE HISTORY OF THE UNITED STATES SENATE 347 (Wendy Wolf ed., 1991).
268. U.S. CONST. art. I, § 6, cl. 1.
269. BYRD, supra note 193, at 348.
270. Id. at 348-49.
271. Id. at 350.
272. Id. at 351 (noting that Georgia citizens hanged senators in effigy and that Tennessee voters demanded the resignation of the state's entire congressional delegation).
273. One victim of the outrage was Representative Daniel Webster, who lost reelection in 1816 and did not return to the House of Representatives until 1822. 2 CQ PRESS, CONGRESSIONAL QUARTERLY, GUIDE TO CONGRESS 888 (6th ed. 2008) [hereinafter GUIDE TO CONGRESS].
274. GUIDE TO CONGRESS, supra note 202, at 888.
275. Id. at 889.
276. BYRD, supra note 193, at 351-54.
277. See generally Bernstein, supra note 192.
278. This amendment would ultimately become the Twenty-Seventh Amendment to the U.S. Constitution, adopted in 1992.
279. Id. at 498.
280. BYRD, supra note 193, at 351.
281. Id. at 355.
282. GUIDE TO CONGRESS, supra note 202, at 889.
283. BYRD, supra note 193, at 355.
284. Bernstein, supra note 192, at 535.
285. Act of Aug. 7, 1953, Pub. L. 83-220, 67 Stat. 485, 485-87 (codified as amended at 2 U.S.C. § 31 (2006))
286. GUIDE TO CONGRESS, supra note 202, at 890.
287. 67 Stat. at 486-87.
288. BYRD, supra note 193, at 355.
289. Act of Dec. 16, 1967, Pub. L. No. 90-206 § 225, 81 Stat. 613, 642-645 (codified as amended at 2 U.S.C. §§ 351-64 (2006)).
290. GUIDE TO CONGRESS, supra note 202, at 890.
291. PAUL DWYER, CONG. RESEARCH SERV., RL 30014, SALARIES OF MEMBERS OF CONGRESS: CURRENT PROCEDURES AND RECENT ADJUSTMENTS 8 (2003).
292. Hanlon, supra note 45, at 343.
293. DWYER, supra note 220, at 7, 28.
294. GUIDE TO CONGRESS, supra note 202, at 890.
295. Under the original legislation that created the Quadrennial Commission, one chamber of Congress could block a pay increase. In response to INS v. Chadha, 462 U.S. 919 (1983), in which the Supreme Court declared the single-chamber legislative veto unconstitutional, Congress modified the law to require both chambers to pass a resolution defeating a salary increase.
296. See DWYER, supra note 220, at 7.
297. DWYER, supra note 220, at 7.
298. GUIDE TO CONGRESS, supra note 202, at 896.
299. Id. at 897.
300. Id. at 896.
301. CONG. QUARTERLY, CONGRESS AND THE NATION VOL. VIII 1989-1992 965 (1993), available at http://library.cqpress.com/catn/catn89-0000013726.
302. Id. at 966.
303. CONG. QUARTERLY, CONGRESS AND THE NATION VOL. VII 1985-1988 900 (1990), available at http://library.cqpress.com/catn/catn85-0012178791.
304. Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716 (codified in scattered sections of 2 U.S.C., 5 U.S.C., 10 U.S.C., 18 U.S.C., 26 U.S.C., 31 U.S.C. (2006)).
305. 5 U.S.C. App. 7 § 501 (2006).
306. 2 U.S.C. §§ 351-52 (2006).
307. 2 U.S.C. § 351 (2006).
308. 2 U.S.C. § 357 (2006).
309. 2 U.S.C. § 358 (2006).
310. 2 U.S.C. § 359 (2006).
311. DWYER, supra note 220, at 7.
312. From 1975-1991 the automatic increase was tied to rate increases given to General Schedule federal employees, but Congress affirmatively had to vote to accept the raise.
313. See Postal Service Compliance with Occupational Safety and Health Act, Pub. L. No. 94-82, 89 Stat. 419 (1975) (codified in scattered sections of 2 U.S.C., 5 U.S.C., 28 U.S.C., 31 U.S.C. (2006)).
314. See, e.g., A Bill to Repeal the Provision of Law that Provides Automatic Pay Adjustments for Members of Congress, S. 620, 111th Cong. (2009).
315. A Bill to Repeal the Provision of Law that Provides Automatic Pay Adjustments for Members of Congress, S. 542, 111th Cong. (2009).
316. Stop the Congressional Pay Raise Act, H.R. 156, 111th Cong. (2009).
317. A Bill to Repeal the Provision of Law that Provides Automatic Pay Adjustments for Members of Congress, S. 317, 111th Cong. (2009).
318. Stop the Congressional COLA Act, H.R. 395, 111th Cong. (2009).
319. Delay the Congressional Pay Raise Act, H.R. 282, 111th Cong. (2009).
320. Congressional Pay Reform Act of 2009, H.R. 215, 111th Cong. (2009).
321. A Bill to Repeal the Provision of Law that Provides Automatic Pay Adjustments for Members of Congress, S. 102, 111th Cong. (2009).
322. IDA A. BRUDNICK, CONG. RESEARCH SERV., 97-1011 GOV, SALARIES OF MEMBERS OF CONGRESS: A LIST OF PAYABLE RATES AND EFFECTIVE DATES, 1789-2008 2 (2008).
323. see also U.S. Senate, Senate Salaries Since 1789, U.S. SENATE, http://www.senate.gov/artandhistory/history/common/briefing/senate_salaries.htm (last visited Oct. 26, 2010).
324. MACNEIL, supra note 3, at 1-2.
325. Indeed, some of the harshest Anti-Federalist critiques of the proposed constitution rested on the belief that the two-year terms for members of the House and the six-year terms for senators were too long to provide "a due dependence and accountability to constituents."
326. st ed. 1981).
327. The Anti-Federalist Brutus stated, "Men long in office are very apt to feel themselves independent [and] to form and pursue interests separate from those who appointed them." BRUTUS XVI (1787), in THE COMPLETE ANTI-FEDERALIST,
328. supra, at 358, 444.
329. The view that elections help ensure a lawmaker's accountability to her constituents remains popular.
330. See, e.g., JOHN ELY, DEMOCRACY AND DISTRUST 131-34 (1980).
331. THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES 92-126 (2d ed. 1979).
332. DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 14 (1993).
333. Marci A. Hamilton, Representation and Nondelegation: Back to Basics, 20 CARDOZO L. REV. 807, 813 (1997).
334. For the suggestion that the relationship between elections and accountability is not as strong as has been supposed.
335. see Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073 (2005).
336. U.S. CONST. amend. XVII.
337. See, e.g., BRUCE CAIN ET AL., THE PERSONAL VOTE: CONSTITUENCY SERVICE AND ELECTORAL INDEPENDENCE 77 (1987).
338. RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES 1 (1973).
339. MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 37 (2d ed. 1989).
340. MAYHEW, supra note 29, at 13
341. MAYHEW, supra note 29, at 81 (stating that "if a group of planners sat down and tried to design a pair of American national assemblies with the goal of serving members' electoral needs year in and year out, they would be hard pressed to improve on what exists").
342. For further discussion, see supra Part II.
343. See supra notes 124-126, 142-146 and accompanying text.
344. See supra notes 142-146 and accompanying text.
345. See supra notes 38-77, 192-211 and accompanying text.
346. See, e.g., Senator Barack Obama, The Second McCain-Obama Presidential Debate (Oct. 7, 2008) (transcript available at the Commission on Presidential Debates, http://www.debates.org/index.php?page=october-7-2008-debate-transcript) ("[W]e're going to have to change the culture in Washington so that lobbyists and special interests aren't driving the process and your voices aren't being drowned out. The key is whether or not we've got priorities that are working for you as opposed to those who have been dictating the policy in Washington lately, and that's mostly lobbyists and special interests.").
347. see also Senator John McCain, The Second McCain-Obama Presidential Debate (Oct. 7, 2008) (transcript available at the Commission on Presidential Debates, http://www.debates.org/pages/trans2008c.html) ("There's too much special interests and too many lobbyists [I]f we get rid of the cronyism and special interest influence in Washington we can act more effectively.").
348. See, e.g., Richard Almeida, Assistant Professor, Francis Marion Univ., Media Framing of Interest Groups as Special Interests, Address Before the Midwest Political Science Association (Apr. 2-6, 2008) (transcript available at http://www.allacademic.com//meta/p_mla_apa_research_citation/2/6/5/9/7/pages265970/p265970-1.php) (examining media treatment of interest groups in the Social Security reform debate between 2002-2006 and finding that the only frame through which the media described these groups was as "special interests").
349. ALAN WOLFE, DOES AMERICAN DEMOCRACY STILL WORK? 88-89 (Norton Garfinkle ed., 2007) (citing public opinion polls showing Americans' dissatisfaction with the perceived influences of organized interest groups).
350. ESKRIDGE ET AL., CASES AND MATERIALS, supra note 17, at 50 (citing WILFRED BINK- LEY & MALCOLM MOOS, A GRAMMAR OF MERICAN POLITICS 7-8 (1950)).
351. See, e.g., MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION 127-28 (1965).
352. ELMER E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA 34-35 (1960).
353. Bone, supra note 134, at 922-23.
354. The debate dates to even before America's founding, as demonstrated by James Madison's famous discussion of factions.
355. See THE FEDERALIST NO. 10 (James Madison).
356. Bone, supra note 134, at 924-25.
357. Carrington, supra note 142, at 301-03.
358. see also JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 144 (1997) (arguing that vague delegations inhibit logrolling).
359. See SCHOENBROD, supra note 258, at 82-83, 224 n.1 (discussing concerns about agency capture expressed by a variety of scholars).
360. Carrington, supra note 142, at 301-02.
361. Id. at 302.
362. Bone, supra note 134, at 896.
363. See supra Part II.
364. see also Mayer, supra note 74, at 394.
365. MAYHEW, supra note 29, at 82-83.
366. The effort to impose pay-as-you-go ("PAYGO") rules to federal budgeting can be seen as an attempt to remake the appropriations process into a zero-sum calculation and thereby create incentives to take into account generalized costs.
367. See, e.g., id. at 118 n.73 ("The quality of ego that motivates people to seek political office is not conducive to collective action once they succeed.").
368. Id. at 52-53.
369. To many legislators, this was a key provision of the BRAC law. Arguing in support of the law as currently formulated, Representative John Kasich (R-Ohio) told his colleagues: Frankly, from a political point of view, from the point of view of the membership of this House, if we are going to have base closings, I think it makes far greater sense from a political perspective for yourselves to notbe held responsible for being able to stop a bill coming up. It is much easier to be able to make the argument that, "I tried to get a resolution of disapproval, but the Congress just simply wouldn't buy it."
370. Levin & Amsterdam, supra note 144, at 10.
371. One way in which Congress can achieve a form of policy upkeep without resorting to a delegation of authority is by indexing benefits.
372. See generally R. KENT WEAVER, AUTOMATIC GOVERNMENT: THE POLITICS OF INDEXATION (1988).
373. That approach has its own problems, of course, and is clearly limited to certain governmental programs, such as salaries and entitlements.
374. See id. at 7-9, 248-55.
375. This is one of the chief advantages of delegating generally, since it gives a non-legislative entity the authority to respond to unforeseen policy needs and conduct maintenance of past policy decisions.
376. See supra notes 147-149 and accompanying text.
377. See, e.g., Bone, supra note 134, at 894-95.
378. See 134 CONG. REC. 17,064-65 (1988) (statement of Rep. Kolbe (R-Ariz.)).
379. 134 CONG. REC. 17,066 (statement of Rep. Morella (R-Md.)).
380. See Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1677-78, 1702 (1975) (describing the traditional rationales for delegation).
381. This idea goes beyond agency capture, noted earlier.
382. See supra note 273 and accompanying text.
383. Instead, it relates to the fact that administrative agencies are often headed by political appointees who see it as their responsibility to promote certain political agendas. The way that politics interfered with scientific determinations related to the Endangered Species Act during the George W. Bush Administration offers a perfect illustration of this problem; this is the type of concern that recusal legislating may address.
384. See OFFICE OF INSPECTOR GEN., DEP'T OF THE INTERIOR, REPORT OF INVESTIGATION: JULIE MACDONALD, DEPUTY ASSISTANT SECRETARY, FISH, WILDLIFE AND PARKS (2007) (finding that Ms. MacDonald altered and manipulated scientific findings, possibly for political reasons).
385. Recusal legislating does not immunize policy development from political interference. Nevertheless, it can help to reduce the politicization of policy development.
386. See U.S. H. R. COMM. ON GOVERNMENTAL REFORM-MINORITY STAFF, 109TH CONG., THE GROWTH OF POLITICAL APPOINTEES IN THE BUSH ADMINISTRATION (Comm. Print 2006) (showing that administrative agencies are becoming increasingly staffed by political appointees, who often serve political agendas, rather than by civil servants).
387. In many cases of recusal legislating, there will not be any pre-existing organizational structure in which a political agenda could be embedded. This is because recusal legislation actually creates the entity responsible for the policy. For example, in the BRAC context, Congress went so far as to place restrictions on who could serve as staff to the Commission.
388. See supra notes 93-95 and accompanying text.
389. See supra notes 265-76 and accompanying text.
390. see also MASHAW, supra note 272, at 144.
391. SCHOENBROD, supra note 258, at 82-83 & n.1.
392. See MAYHEW, supra note 29, at 15-16.
393. Hughes, supra note 175, at 6-11.
394. See Mullenix, supra note 145, at 835.
395. The history of proposed changes to Rule 68 also shows that interest groups are better able to lobby and persuade Congress than they are the Advisory Committee.
396. See, e.g., id. at 848-51.
397. See id. at 834-36.
398. See 134 CONG. REC. 17,079-87 (1988).
399. See generally 134 CONG. REC. 17,056-87 (1988).
400. Defense Base Closure and Realignment Commission §§ 2902(k), 2905(a), 2906, 10 U.S.C. § 2687 note (2006).
401. Id. § 2908(a)(2).
402. Id. § 2908(d).
403. See id. § 2904.
404. The Supreme Court has also held that judicial review of the Commission's recommendations is unavailable, except with regard to claims brought under the National Environmental Policy Act ("NEPA").
405. See Dalton v. Specter, 511 U.S. 462, 476-77 (1994).
406. id. at 483 (Souter, J., concurring) (stating judicial review is still available under the NEPA).
407. see also id. at 479 (stating that the "text, structure, and purpose of the Act compel the conclusion that judicial review of the Commission's or the Secretary's compliance with it is precluded").
408. The BRAC debate is full of such examples.
409. See generally 134 CONG. REC. 17,056-87 (1988). Special thanks to Professor David Menefee-Libey for allowing the Author to borrow from the title of his book.
410. DAVID MENEFEE-LIBEY, THE TRIUMPH OF CAMPAIGN-CENTERED POLITICS (2000).
411. See supra note 284.
412. The BRAC law can also be seen in this light. By the time Congress enacted the law, dozens of bases were considered to be obsolete or unnecessary, yet Congress was incapable of updating America's military base policy.
413. See supra notes 74-77 and accompanying text. BRAC was a response to the need for procedures to address this maintenance problem.
414. See, e.g., SCHOENBROD, supra note 258, at 99-106.
415. There may also be concerns over the constitutionality of this practice. But given the dormant status of the Supreme Court's nondelegation doctrine, and especially because the Rules Enabling Act and the BRAC Commission both survived constitutional challenges before the Court, I will leave for another time the constitutional questions raised by recusal legislating.
416. See Dalton, 511 U.S. at 462 (upholding BRAC commission recommendations).
417. Sibbach v. Wilson, 312 U.S. 1, 9-10 (1941) (upholding the Rules Enabling Act).
418. SCHOENBROD, supra note 258, at 99.
419. See, e.g., MASHAW, supra note 272, at 152-53 (arguing that because the President is democratically elected, the responsiveness link between citizens and governmental policies effectuated by executive branch agencies remains).
420. David R. Mayhew, Is Congress "the Broken Branch"?, 89 B.U. L. REV. 357, 360 (2009).
421. This differs from the concern that recusal legislating is anti-democratic in that it focuses on whether citizens will be able to hold their elected representatives accountable for a failure to create policies reflecting the public view, rather than on whether those policies accurately reflect the public view in the first place.
422. SCHOENBROD, supra note 258, at 9-10.
423. Id. at 14.
424. See supra note 281 (quoting Senator Phil Gramm (R.-Tex.) discussing the BRAC law).
425. CAL JILLSON, AMERICAN GOVERNMENT: POLITICAL DEVELOPMENT AND INSTITUTIONAL CHANGE 34-38 (5th ed. 2009).
426. See THE FEDERALIST NO. 73, at 422-23 (Alexander Hamilton) (Kathleen M. Sullivan ed., 2009).
427. ELY, supra note 258, at 133-34 (stating that "one reason we have broadly based representative assemblies is to await something approaching a consensus before government intervenes").
428. SCHOENBROD, supra note 258, at 107-18.
429. Professor Schoenbrod views this framework value as a means employed by the Framers of the Constitution to protect liberty, defined as "the people's right to be left alone by government except when some genuinely public purpose warrants intervention."
430. SCHOENBROD, supra note 258, at 107.
431. Jeremy Waldron, Representative Lawmaking, 89 B.U. L. REV. 335, 340-45 (2009).
432. Id. at 336.
433. Id. at 339.
434. See, e.g., Administrative Procedure Act of 1946, 5 U.S.C. §§ 551-53 (2006).
435. In fact, this concern is heightened with recusal legislating, because the delegation might not be to an entity covered by the Administrative Procedure Act.
436. See, e.g., Dalton v. Specter, 511 U.S. 462, 476 (1994) (holding that the actions of the Secretary of Defense and the BRAC Commission cannot be reviewed under the APA because they are not "final agency actions," and that the actions of the President under the BRAC law cannot be reviewed under the APA because the President is not an "agency").
437. Notably, notice and comment was not required under the Rules Enabling Act until the 1988 Judicial Improvements and Access to Justice Act. See 28 U.S.C. § 2073 (2006).
438. See, e.g., 1 RECORDS, supra note 4, at 448 (James Madison speaking of giving the government sufficient energy).
439. id. at 483-84 (statement of James Wilson that "[b]ad Governts. are of two sorts. 1. that which does too little. 2. that which does too much: that which fails thro' weakness; and that which destroys thro' oppression. Under which of these evils do the U. States at present groan? under the weakness and inefficiency of its Governt. To remedy this weakness we have been sent to this Convention").
440. See id. at 51, 150-52, 318-41 (Madison's notes detailing the debate over representation in, and the size of, the national legislature).
441. see also THE FEDERALIST NOS. 55, 56, and 62 (James Madison) (discussing the importance of the size of the House and Senate).
442. See generally Michael S. Lynch & Anthony J. Madonna, Viva Voce: Implications from the Disappearing Voice Vote (Mar. 2008) (manuscript presented at the 2008 Annual Meeting of the Midwest Political Science Association), available at http://www.allacademic.com//meta/p_mla_apa_research_citation/2/6/6/2/6/pages266269/p266269-1.php.
443. See, e.g., MICHAEL B. GERRARD, WHOSE BACKYARD, WHOSE RISK 186-87 (1994).
444. See Kenneth R. Mayer, The Limits of Delegation: the Rise and Fall of BRAC, 22 REGULATION, no. 3, 1999, available at http://www.cato.org/pubs/regulation/regv22n3/limitsofdelegation.pdf.
445. See, e.g., Peter Nicholas & Christi Parsons, Obama Presents $3.8 Trillion Budget; Calls for Fiscal Commission, CONCORD MONITOR, Feb. 2, 2010, http://www.concordmonitor.com/article/obama-presents-38-trillion-budget.