There’s been a lot of discussion recently about the idea that certain statutes (whether you call them canonical, super-statutes, or super-duper statutes) are now part of the Constitution. This idea comes from the British Constitution, where certain statutes (The Reform Act of 1832, the 1911 Parliament Act) are considered fundamental and not subject to repeal even though formally they could be.
I tried to put together a list of what statutes might qualify for this exalted status. Here’s what I came up with:
1. The Judiciary Act of 1789
2. The Civil Rights Act of 1964
3. The Voting Rights Act of 1965
4. The Federal Reserve Act of 1913
5. The Administrative Procedure Act of 1946
6. The Social Security Act of 1935
7. The Pendleton Act (as amended by the Hatch Act)
Here are some other (less convincing) possibilities:
1. The Fair Labor Standards Act
3. The Sherman Anti-Trust Act
4. The Clean Air Act , Clean Water Act, and CERCLA
5. The Americans with Disabilities Act
Perhaps I’m missing some. I’d be curious to hear your thoughts. The interesting thing that I noticed is that it looks like all of these super-statutes passed by supermajorities in Congress. If true, this undermines the argument that the composition of the Senate is unreasonably skewed or is prevents major legislation (i.e., universal health care) from being enacted. A better explanation is that political elites shrink from making these sorts of groundbreaking changes unless they have massive support, which gives credence to the notion of their “quasi-constitutional” status.