Stealth Legislation
posted by Daniel Solove
Want to pass a controversial law? Why debate it? Why discuss it? Why hold hearings about it? Just slip it into a massive budget bill that nobody could possibly vote against. And it gets through.
I don’t know if such a technique has a name, but I’d call it something like “stealth legislation.” It is the tactic of attaching a particular legislative measure to a bill that’s sure to pass. This what is happening with the 9th Circuit split. The 9th Circuit is a large unweildy federal court covering the entire West Coast. For years, proposals to split it up have been discussed, but little progress has been made. That’s because California accounts for the lion’s share of the cases, nobody wants to split off California into its own circuit court, and nobody wants to split California in half or into pieces. The problem has been difficult and there’s been a big struggle over resolving it.
But instead of debating the issue, of resolving it through a legitimate legislative process, some in Congress have chosen a different approach:
Their proposal to split the 9th U.S. Circuit Court of Appeals stalled in the U.S. Senate last year. So House Republicans have taken a new approach this year: Attach a split proposal to a provision for new judgeships and tuck it into a $35 billion spending-cut bill.
While the House voted last year to split the 9th Circuit, the Senate blocked a similar bill, with even some Republicans voting against it. So the latest split proposal is structured to sidestep debate in the Senate Judiciary Committee and discussion on the floor, reaching the Senate only in the budget conference committee.
The Real ID Act was another example of this tactic. Instead of hearings or deliberation, it was passed by inserting an amendment into a funding bill that would have been political suicide to vote against.
These tactics strike me as despicable. They cut against most reasons why we view the legislature as a legitimate lawmaking institution. When legal process theorists point out the virtues of the legislative process vis-a-vis the judicial process, they point to the fact that Congress holds hearings, debates about an issue, and then the elected representatives vote on the merits of the issue. But all of these things are not occurring with this tactic of stealth legislation. Stealth legislation is akin to pork barrel — a gamesmanship of the system that represents a serious problem in the legislative process.
Should courts treat all laws passed by Congress with equal respect and deference? Or should laws passed via such tactics and gamesmanship be treated less deferentially because they do not have the same democratic genesis as other laws? Is it appropriate for courts to examine such questions? If not, what should be done to halt stealth legislation? Is it possible to erradicate or reduce the use of this tactic?
November 3, 2005 at 7:57 pm
Posted in: Politics
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Responses (9)
Mike - November 3, 2005 at 11:56 pm
Should courts treat all laws passed by Congress with equal respect and deference?
No – because of separation of powers concerns. If the Court more carefully scrutinized laws based on whether they were enacted due to “gamesmanship,” the Court would de facto begin crafting rules of procedure for Congress. (Re: If you use x-procedure, your law will get deference; but not so if you use y-procedure.)
Anyhow, it’s funny to read your post in light of the line-item veto case. In the line-item veto case, the Court waxes on and on about the virtues of bicameralism and presentment. With laws like the one you cited above, one has to wonder if the Court wasn’t spoon-feeding us horse manure.
Dennis J. Tuchler - November 4, 2005 at 11:48 am
‘Should courts treat all laws passed by Congress with equal respect and deference? Or should laws passed via such tactics and gamesmanship be treated less deferentially because they do not have the same democratic genesis as other laws? Is it appropriate for courts to examine such questions? If not, what should be done to halt stealth legislation? Is it possible to erradicate or reduce the use of this tactic?”
Unless the courts impose some version of Justice H. Linde’s “due process of legislation” on Congress, there is no basis for treating any product of an Article-I-sanctioned process of legislation from any other product, however either becomes law.
How would the courts distinguish among Article I products to determine which was properly processed through Congress’s digestive tract and which was not? What would the criteria be for inadequately debated legislation?
Daniel Solove - November 4, 2005 at 12:10 pm
This post is a thought exercise. In particular, the rationale for judicial deference to Congress often turns on legal process justifications for why Congress employs a more democratic law-making process and a better fact-finding process. If these things aren’t true with stealth legislation, then it is hard to justify deference on this basis. Now, there are other grounds for deference, such as separation of powers, etc. But then the larger question remains — if Congress can’t seem to keep itself in line; and if the Executive Branch doesn’t seem capable of operating as a check on stealth legislation, then who should stamp it out? In most cases, I agree that the courts can’t simply invalidate a law because it is passed in this manner. But in cases where courts are examining the constitutionality of a law and say that they will defer to Congress because of Congress’s greater expertise or fact-finding, perhaps the courts should not defer. This doesn’t mean necessarily striking down a law, but it might mean a more rigorous judicial review.
Paul Gowder - November 4, 2005 at 1:02 pm
It’s certainly an interesting issue. Unfortunately, I think the separation-of-powers crowd wins out on this one. Haven’t people been agitating for a constitutional amendment to solve this problem for a while? I feel like I’ve heard of a group or two that is on this issue, somewhere, vaguely.
I would say that’s the solution. An amendment barring non-topical legislation. It would be hell to draft and interpret, but surely not as bad as the alternatives.
Nate Oman - November 4, 2005 at 1:04 pm
Dan: I have to respectfully disagree with you about whether or not adding legislation as an amendment to a bill that is “moving” is per se despicable. I have no opinion on the two specific bills that you mention. On the other hand, I think it is worth noting that often time there has been extensive debate on ideas in the past. Furthermore, the failure of a bill to move needn’t necessarily reflect some sort of deliberate choice. As often as not it can be the result of opposition from a few key gate keepers. Attaching a bill as a rider to another piece of legislation can often be a good way of circumventing the power of these gatekeepers. In other words, the legislative process is far too complicated to draw the sorts of distinctions that you suggest between good bills and bad bills on the basis of their legislative history. Given this fact, creating multiple standards of review for laws based on their legislative history strikes me as particularlly unwise.
Daniel Solove - November 4, 2005 at 2:21 pm
Nate writes: “Furthermore, the failure of a bill to move needn’t necessarily reflect some sort of deliberate choice. As often as not it can be the result of opposition from a few key gate keepers. Attaching a bill as a rider to another piece of legislation can often be a good way of circumventing the power of these gatekeepers.”
That’s certainly true, but there are also many cases where this isn’t the case. In many instances, a measure that would not ordinarily command a majority, that has been repeatedly shot down, suddenly gets slipped in.
Part of the impetus for this post is a thought experiment about how to eliminate some of the pathologies in the legislative process. I often find among legal process arguments an idealized portrait of the legislative process vis-a-vis the judicial one. While there is a lot of criticism of late of the judicial process, its anti-democratic nature, etc., there are severe problems on the legislative side. These have certainly been pointed out many a time, but little progress has been made on addressing them. Thus, the purpose of this post is to provoke some thought in resolving these pathologies when they arise.
Mike - November 4, 2005 at 2:30 pm
Attaching a bill as a rider to another piece of legislation can often be a good way of circumventing the power of these gatekeepers.
True, true. A good example of this is the Feeney Amendment. Feeney was attached as a rider to Amber Alert legislation. No one could dare vote against it. Lots of people (even Chief Justice Rehnquist) were ticked off about the Feeney Amendment. The Feeney Amendment would thus seems as one of those nasty riders. It would not have passed, we argue, but for the sneaky tactic of amending it to federal funding for Amber Alerts.
Except that an attempt to abrogate the Feeney Amendment – the JUDGES Act – failed. (The JUDGES Act which would have, inter alia, returned the standard of review for downward departures to de novo.) Support for the law was skimpy. The JUDGES Act never got any real traction. Why not? What’s the lesson here?
The lesson is (likely, anyway, since I don’t make sausages) most members of Congress were either comfortable with the Feeney Amendment (but would never have voted for it outside the Amber Alert legislation because that would mean crossing Sen. Kennedy), or not so uncomfortable that they would support the JUDGES Act. In other words, Sen. Kennedy was a powerful gatekeeper who used his power to frustrate the democratic process. Or something like that.
Or who knows? Someone could devote his schoarly life to this issue and likely never find The Answer. An issue like this should be kept from the courts, since really, what do they (other than Breyer) know about such things?
Mike - November 4, 2005 at 2:38 pm
That’s certainly true, but there are also many cases where this isn’t the case. In many instances, a measure that would not ordinarily command a majority, that has been repeatedly shot down, suddenly gets slipped in.
I agree that there there are legislative pathologies that need fixed. (Who disagrees with this?) That’s the easy part. The hard part is determining – since a court of law would need to rely on evidence for answers – how to prove that a “a measure that would not ordinarily command a majority, that has been repeatedly shot down, suddenly gets slipped in.” Wouldn’t we have the same problems or proof that arise with legislative history?
The rider might be part of some deal we don’t know about. The rider might have been necessary for some omnibus (and manifestly good) bill to pass. Indeed, to answer the question of why something was slipped in, wouldn’t we need to subpoena people – even Congresspersons?
Until there’s a way to determine, based on evidence, whether some rider was “snuck” in, then the issue of judicial review isn’t ripe.
Simon - November 4, 2005 at 3:54 pm
If the courts were to premise the validity of laws based on how they were passed, courts would have to examine the legislative history of a law to determine how it was passed (which I regard as invalid) and they would have to make subjective judgements about what is or is not valid legislative practise (which I don’t think is their place).
I don’t have an objection to a law or rule which requires the Speaker and President pro tem to rule non-germaine amendments out of order, but I do have a problem with Courts doing so. This whole premise that courts should rush ahead of the legislature to fix what it thinks are problems of a piece of legislation is objectionable.
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