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.

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.

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?

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.

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.

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?

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.