Category Archives: Congress

CRS Reports on the Supreme Court Appointment Process

Here are five CRS reports that address the Supreme Court appointment process:

  1. Supreme Court Vacancies: Frequently Asked Questions, March 31, 2016 R44440
  2. President’s Selection of a Nominee for a Supreme Court Vacancy: Overview, June 27, 2018 IN10923
  3. Supreme Court Appointment Process: President’s Selection of a Nominee, June 27, 2018 R44235
  4. Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, March 17, 2017 R44236
  5. Supreme Court Appointment Process: Senate Debate and Confirmation Vote, October 19, 2015 R44234

— Joe

A Constitutional Role Morality for the Trump Era and Beyond

From the abstract for Neil Siegel’s Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for the Trump Era and Beyond, Georgetown Law Journal, Forthcoming:

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems.

— Joe

Chafetz’ Congress’s Constitution: Legislative Authority and the Separation of Powers

From the blurb for Congress’s Constitution: Legislative Authority and the Separation of Powers by Josh Chafetz (Yale UP, 2017):

Congress is widely supposed to be the least effective branch of the federal government. But as Josh Chafetz shows in this boldly original analysis, Congress in fact has numerous powerful tools at its disposal in its conflicts with the other branches. These tools include the power of the purse, the contempt power, freedom of speech and debate, and more.

Drawing extensively on the historical development of Anglo-American legislatures from the seventeenth century to the present, Chafetz concludes that these tools are all means by which Congress and its members battle for public support. When Congress uses them to engage successfully with the public, it increases its power vis-à-vis the other branches; when it does not, it loses power. This groundbreaking take on the separation of powers will be of interest to both legal scholars and political scientists.

— Joe

The House Journal: Origin, Purpose, and Approval: CRS report

The House Journal: Origin, Purpose, and Approval (R45209, May 31, 2018) “considers the origin and purpose of the Journal as well as the procedures related to its approval. It discusses why a Member might call for a vote and why a Member might vote against the Journal’s approval. The report also examines record approval votes from 1991 to 2016 (102nd-114th Congresses), addressing trends in the frequency of these votes, the percentage of votes initiated by majority party Members, and the procedures used to call for or postpone record votes.” — Joe

Constitutional construction in the early Republic

In his essay, An Evaluation of Historical Evidence for Constitutional Construction From the First Congress’ Debate Over the Constitutionality of the First Bank of the United States, 14 University of St. Thomas Law Journal 193 (2018), Lee J. Strang reviews “a modest selection of important evidence from the early Republic, the debate over the constitutionality of the First Bank of the United States in the First Congress, to evaluate whether, to what extent, and how Americans utilized constitutional construction in the early Republic. This Essay derives a number of tentative conclusions from this evidence. First, the participants in this early debate appeared to believe that a necessary precondition for constitutional construction — underdeterminacy — existed. Second, the participants also argued as if, after the application of a number of interpretative rules, the Constitution provided a determinate answer to the constitutional question. Third, the participants seemed ultimately to conclude that the Constitution’s meaning provided a determinate answer to the question under debate (though they continued to disagree about what that answer was).”

The independence of federal law enforcement and Congress

From the abstract of Andrew Kent’s Congress and the Independence of Federal Law Enforcement, 52 U.C. Davis Law Review (Forthcoming 2018): “Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today.” — Joe

Senate Judiciary Committee releases hearing transcripts about the June 2016 Trump Tower meeting [text]

As a part of its oversight of the Justice Department’s enforcement of the Foreign Agents Registration Act and federal investigations into potential improper influence during the 2016 presidential election, the Senate Judiciary Committee conducted bipartisan staff interviews with and submitted written questions to witnesses regarding circumstances surrounding the June 9, 2016, Trump Tower meeting. The committee on Wednesday released transcripts and hundreds of pages of related material from nine people connected to the meeting. The documents contain a record of closed-door committee interviews with five of the eight meeting attendees, including Trump Jr., British music promoter Rob Goldstone, Russian-American lobbyist Rinat Akhmetshin, translator Anatoli Samochornov and Ike Kaveladze, a Russian with ties to oligarch Aras Agalarov. Here’s the transcripts. — Joe

Judicial review of federal agency action

From the introduction for the CRS Report An Introduction to Judicial Review of Federal Agency Action (R44699 Dec. 7, 2016): “The U.S. Constitution vests the judicial power in the Supreme Court and any inferior courts established by Congress, limiting the power of federal courts to the context of “cases” or “controversies.” Pursuant to constitutional and statutory requirements, courts may hear challenges to the actions of federal agencies in certain situations. This report offers a brief overview of important considerations when individuals bring a lawsuit in federal court to challenge agency actions, with a particular focus on the type of review authorized by the Administrative Procedure Act (APA), perhaps the most prominent modern vehicle for challenging the actions of a federal agency.” — Joe

Why Congress matters

Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Florida Law Review ___ (2018) by Neomi Rao “provides a modern reconsideration of why Congress still matters by examining the “collective Congress” within the text, structure, and history of the Constitution. Like the unitary executive, the collective Congress is a structural feature of the Constitution’s separation of powers. With deep roots in political theory, the Framers created a representative and collective legislature that would provide a legitimate mechanism for bringing together the nation’s diverse interests to most effectively pursue the common good. To fully realize the benefits of collective lawmaking, the Constitution insists on the double exclusivity of the legislative power: only Congress can exercise legislative power, and Congress possesses only legislative power. The Constitution ties the ambitions of representatives and senators to Congress as an institution by prohibiting members of Congress from exercising the executive or judicial powers. This structure supports the members’ fiduciary responsibilities to the people, minimizes corruption, and reinforces the independence and integrity of the lawmaking power.

“Understanding the principles of a collective Congress provides a framework for analyzing a range of separation of powers questions, particularly those arising from the delegation of legislative power to administrative agencies. Quite simply, presidential control of administration cannot replace congressional control of legislation. Congress remains relevant in our complex modern society because it provides a unique form of accountability for ascertaining and pursuing the public good, preserving the rule of law, and protecting individual liberty. The collective Congress provides a powerful conceptual framework for understanding the scope of the Constitution’s “legislative power” and how Congress may exercise it. The administrative state blurs the line between the executive and legislative powers. The collective Congress sharpens that line and helps explain why Congress still matters in our system of government.”

— Joe

House Intelligence Committee Democrats release their final Russia probe report [text]

Following on the heels of the Hourse Intel Committee’s majority report by Republican members of the committee, committee member Democrats released their report on Friday. — Joe

C-SPAN’s searchable transcript of Zuckerberg’s Senate hearing

H/T to beSpacific for locating the Zuckerberg transcript — Joe

Zuckerberg’s prepared statement for Congress [text]

Ahead of two days of congressional testimony, Facebook CEO Mark Zuckerberg’s prepared statement can be read here. — Joe

Nourse’s Misreading Law, Misreading Democracy

Here’s the blurb for Victoria Nourse’s Misreading Law, Misreading Democracy (Harvard UP, 2016):

American law schools extol democracy but teach little about its most basic institution, the Congress. Interpreting statutes is lawyers’ most basic task, but law professors rarely focus on how statutes are made. This misguided pedagogy, says Victoria Nourse, undercuts the core of legal practice. It may even threaten the continued functioning of American democracy, as contempt for the legislature becomes entrenched in legal education and judicial opinions. Misreading Law, Misreading Democracy turns a spotlight on lawyers’ and judges’ pervasive ignorance about how Congress makes law.

Victoria Nourse not only offers a critique but proposes reforming the way lawyers learn how to interpret statutes by teaching legislative process. Statutes are legislative decisions, just as judicial opinions are decisions. Her approach, legislative decision theory, reverse-engineers the legislative process to simplify the task of finding Congress’s meanings when statutes are ambiguous. This theory revolutionizes how we understand legislative history—not as an attempt to produce some vague notion of legislative intent but as a surgical strike for the best evidence of democratic context.

Countering the academic view that the legislative process is irrational and unseemly, Nourse makes a forceful argument that lawyers must be educated about the basic procedures that define how Congress operates today. Lawmaking is a sequential process with political winners and losers. If lawyers and judges do not understand this, they may well embrace the meanings of those who opposed legislation rather than those who supported it, making legislative losers into judicial winners, and standing democracy on its head.

— Joe

Claims of neutrality in SCOTUS confirmation hearings have negative effects on the legitimacy of the Court as an institution

Here’s the abstract for Carolyn Shapiro’s The Language of Neutrality in Supreme Court Confirmation Hearings, Dickinson Law Review, Forthcoming:

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials — like statutes and precedents — and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then-Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some Senators, however, they differed from answers given by other recent nominees largely in degree and tone, not in kind. Indeed, all four most recent nominees before Gorsuch — but especially Chief Justice Roberts and Justice Sotomayor — made similar claims, of which Roberts’s invocation of the neutral umpire is only the most famous.

Such forceful claims of neutrality and their attendant implication that there are necessarily right and wrong answers to difficult legal questions — answers that can be determined through deductive reasoning or by examining legal texts through the right lens — are not new, but their role and prominence in Supreme Court confirmation hearings have changed over the years. Using both qualitative and quantitative analysis, including empirical research on confirmation hearings already reported, this Article charts the history of such discussions in Supreme Court confirmation hearings from Justice Harlan’s hearing in 1955 through Justice Gorsuch’s hearing in 2017 — the period of time during which all nominees have been expected to appear before the Senate Judiciary Committee. More specifically, the Article focuses on the extent to which nominees and Senators have claimed that there are objectively correct answers to the hard questions faced by the Supreme Court or, alternatively, have acknowledged and discussed the reality that textual and historical sources often do not provide clear answers and that Supreme Court Justices must balance competing interests, precedents, and constitutional principles and apply constitutional provisions and doctrines in new and complex factual circumstances.

Specifically, the Article establishes that during the Warren court years, claims of objectivity were often made by conservative Senators, with relatively little discussion of alternative views of judging by either Senators or nominees. By the late 1980s and 1990s, however, Senators and nominees were having surprisingly candid conversations about the role of the Supreme Court, conversations that acknowledged the importance of judgment and judicial philosophy in resolving many difficult constitutional questions. Since 2000, however, nominees have largely eschewed such discussions and, along with Republican Senators, have embraced claims of objectivity and neutrality.

As the Article demonstrates, however, such claims about the Court and its work are highly inaccurate, and they may have negative effects on the legitimacy of the Court as an institution. After all, when the Court announces its decisions in difficult cases, members of the public can plainly see that different Justices both approach those cases differently and often disagree about the result in predictable ways. News media regularly refer to the “liberal” and “conservative” Justices. So there is a significant disconnect between the claims made during confirmation hearings and the actions the Justices take — and research suggests that such a disconnect can undermine public confidence in the institution. The Article closes by proposing that Senators use their questions during confirmation hearings to combat the myth that judging, especially on the Supreme Court, is necessarily about reaching objectively correct, logically deducible conclusions.

— Joe

The constitutionality of censuring the President

Two pending House resolutions would condemn and censure President Trump if passed. They are H.Res. 496 and H.Res. 700. From The Constitutionality of Censuring the President (Legal Sidebar 10096, Mar. 12, 2018): “While each house of Congress has authority to discipline its own Members through censure, congressional censure of the President is rare. For that reason, there seems to be a recurring question as to whether Congress has the constitutional authority to adopt such a measure at all. As discussed below, it would appear that Congress may censure the President through a simple (one chamber) or concurrent (two chamber) resolution, or other non-binding measure, so long as the censure does not carry with it any legal consequence.” — Joe

House Intel Committee Republicians report Russia probe findings [text]

While the reported 150-page committee report is not yet available, the Committee has published a one-page summary here. According to the summary the draft report contains 40+ initial findings that describe:

  • A pattern of Russian attacks on America’s European allies;
  • Russian cyberattacks on U.S. political institutions in 2015-2016 and their use of social media to sow discord;
  • A lackluster pre-election response to Russian active measures;
  • Concurrence with the Intelligence Community Assessment’s judgments, except with respect to Putin’s supposed preference for candidate Trump;
  • We have found no evidence of collusion, coordination, or conspiracy between the Trump campaign and the Russians;
  • How anti-Trump research made its way from Russian sources to the Clinton campaign; and
  • Problematic contacts between senior Intelligence Community officials and the media.

— Joe

Declassified Schiff memo released [text]

Intended to rebut the declassified Nunes memo, the 10-page Schiff memo, drafted by Democratic party members of the House Intelligence Committee, was declassified after being redacted, unlike the Nunes memo, and was released on Saturday, Feb. 24, 2018. Text of Schiff memo. — Joe

CRS report: Resolutions to Censure the President: Procedure and History

From the introduction to Resolutions to Censure the President: Procedure and History (Feb. 1, 2018 R45087):

Censure is a reprimand adopted by one or both chambers of Congress against a Member of Congress, President, federal judge, or other government official. While Member censure is a disciplinary measure that is sanctioned by the Constitution (Article 1, Section 5), non-Member censure is not. Rather, it is a formal expression or “sense of” one or both houses of Congress. As such, censure resolutions targeting non-Members use a variety of statements to highlight conduct deemed by the resolutions’ sponsors to be inappropriate or unauthorized.

Resolutions that attempt to censure the President for abuse of power, ethics violations, or other behavior, are usually simple resolutions. These resolutions are not privileged for consideration in the House or Senate. They are, instead, considered under the regular parliamentary mechanisms used to process “sense of” legislation.

H/T to beSpacific. For links to additional CRS reports on this topic, see the LLB post. — Joe

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law?

For an answer to the post title’s question, see Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stanford Law Review 901 (2013) and Part II, 66 Stanford Law Review ___ (2014) by Abbe R. Gluck and Lisa Schultz Bressman. Here’s the abstract for Part I:

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Recommended. — Joe

CRS report: Congressional Budget Resolutions: Historical Information

From the summary of Congressional Budget Resolutions: Historical Information (Nov. 16, 2015 RL30297):

The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, as amended; 2 U.S.C. 601-688) provides for the annual adoption of a concurrent resolution on the budget each year. The congressional budget resolution represents a budget plan for the upcoming fiscal year and at least the following four fiscal years. As a concurrent resolution, it is not presented to the President for his signature and thus does not become law. Instead, when adopted by Congress, the budget resolution serves as an agreement between the House and Senate on a congressional budget plan. As such, it provides the framework for subsequent legislative action on budget matters during each congressional session.

— Joe