Congress in Action, or Congressional Inaction?

Traditional law and economic analysis has focused on legal rules directly related to the allocation of resources. Today, economic analysis is being used to examine more traditional legal issues. This article explores one such traditional legal issue by applying economic methodology to the legislative-judicial interaction or bargaining game. The purpose of this article is to determine the impact of judicial interpretation on regulatory legislation. Most studies of the political economy of regulation have focused on elected politicians (e.g., Congressmen), ignoring the role of the courts. Yet, judges interpret the law and may, in the extreme, reverse legislative decisions. Studying the influence of the judiciary on the legislature’s regulatory decisions remains an unexplored but important issue. The model allows us to address a variety of issues central to national policy making, for example, how the court influences legislative choices. We focus on an issue raised in the legal literature and in judicial opinions. Suppose a regulatory statute has been altered or reinterpreted by the courts, and we then observe that Congress does not act to change the court ruling. What can we infer from this lack of action? Many prominent political and legal scholars conclude that this inaction indicates acceptability by a majority of legislators. Because there exists no analytical foundation for assessing how judicial decisions affect legislative decision making over regulatory issues, however, such conclusions rest on questionable assumptions. The purpose of this article is to develop a formal economic model of legislative-judicial interaction. The model allows us to predict the circumstances in which Congress will and will not change judicial decisions. The model shows that congressional inaction is not a sign of acceptability by a majority of legislators. Instead, congressional inaction is a consequence of congressional structure and procedures: committees play an important role here, as does bicameralism. This model will be used to explore and explain the legislative events surrounding the Supreme Court decision Grove City College v. Bell (1984), a case involving statutory interpretation and the Department of Education’s regulatory provisions prohibiting sex discrimination. (JEL D72, D78, K00, K40, Z18)

Prosecutorial Discretion Power at its Zenith: The Power to Protect Liberty

Spurred by U.S. congressional inaction on climate change and by President Barack Obama's comments on the topic in his 21 January inaugural address, several Democratic members of Congress announced at a Capitol Hill briefing the formation of a bicameral task force on climate change. In addition, they have called on the president to use his administrative authority to deal with the issue.

The debate over acid rain in North America has produced an interesting set of political interactions within the United States and between Canada and the U.S. at the subnational level. The long delay in reaching a bilateral agreement coupled with congressional inaction has stimulated relations at the subnational level between the two countries. This article will investigate the role of provinces and states in foreign policy-making and the agreements that have occurred. This type of activity - known as paradiplomacy - has been the subject of research in both North America and Europe in recent years by a number of political scientists (Duchacek 1986, Soldatos 1986). The focus for the analysis to follow is the nonbinding agreement - the Memorandum of Understanding. To date, eight Memoranda either entirely or in part devoted to acid rain have been signed by states and provinces. The first was signed by New York and Quebec in 1982 and the most recent was an expanded agreement signed by New York and Quebec in 1986. Other agreements include New York and Ontario (1983), Minnesota and Ontario (1983), a New York and Quebec Amendment to the 1982 Agreement (1984), Michigan and Ontario (1985), British Columbia and Washington State (1985), and Wisconsin and Quebec (1985). It is important to review briefly the politics of acid rain in order to understand the context for the subnational agreements. After this overview, the conceptual work done by two political scientists in the area of paradiplomacy will be discussed. The eight agreements will then be compared and analyzed. The article will conclude with a summary of how these Memoranda of Understanding shed light on the theoretical work.

“War powers authorities” examines the political dynamics associated with US debates during the Obama and Trump presidencies over repealing or replacing authorizations for use of military force (AUMFs) that Congress had enacted into law in 2001 and 2002. While Democrats were generally more supportive than Republicans of repealing the AUMFs, libertarian Republicans joined progressive Democrats in support of greater restrictions on presidential military power. This strange bedfellows coalition was enabled by a politically diverse advocacy coalition outside government that pushed for AUMF repeal. However, the electoral risks facing members of Congress on AUMF votes resulted in congressional inaction on the issue, leaving the president in the driver’s seat on the use of force against suspected terrorist groups. The chapter also considers more briefly the political dynamics associated with two other Trump-era war powers debates, involving the authority to intervene militarily in Yemen and against Iran.

Commerce. State Regulation. Congressional Inaction. Rates for Inter-State Ferriage. Port Richmond and Bergen Point Ferry Co. v. Board of Chosen Freeholders of the County of Hudson, 34 Sup. Ct. R. 821

Although the nation has been consumed by the issue of health system reform for the last 2 years, the focus has been relatively limited, concentrating on policies at the federal level and on the problems of accessibility and financing of insurance for personal medical services. But reform of the US health system is a considerably broader issue. Despite congressional inaction this year, profound changes are taking place through state legislative reform, the regulatory process (such as Medicaid waivers), and marketplace forces. And some policymakers in the federal government and the states are approaching health system reform not only from the vantage point of access and cost containment, but with the added goals of protecting and improving the population's health. See also pp 1276 and 1292. Two articles in this issue ofThe Journal, by Baker et al¹and by Fielding and Halfon,²make a strong case for taking

Underlying both the Supreme Court's decision in Shelby County v. Holder and congressional inaction in renewing the Voting Rights Act (VRA) is the claim that the Voting Rights Act has already succeeded and is therefore no longer necessary. These claims ignore enduring challenges to voter participation and miss the steep drop off in participation by historically excluded groups in mid-term elections and the persistent participation gap for Latinos in all elections, especially in jurisdictions that have historically been covered by the VRA. In responding to these enduring challenges of voter participation, universal approaches to expanding voter registration and participation are increasingly important. Fifty-one million eligible Americans still cannot participate in voting because they are not registered to vote, and these potentially eligible voters are disproportionately African American and Latino. Universal responses to expanding voter registration such as Election Day Registration and automatic voter registration contribute to reducing racial gaps in voting in part because they facilitate participation by younger voters. While more universal approaches to expanding voter registration and voter participation cannot recapture every important dimension of the unique architecture of the Voting Rights Act, they nonetheless hold enormous potential to build on the underlying goal of the VRA to expand voter participation among historically excluded communities within the United States.

Intergovernmental health policy has seen centralization and decentralization over the past forty years. The negotiations—and who wins and who loses—often depend on politics more than rational sorting of intergovernmental responsibilities. As in other policies, politics often trumps health policy—even where governors and state legislatures are of the same party as national leadership. Political rhetoric in 2017 once again calls for a larger role for states in possible reform of the nation’s health system, but nation-centered federalism persists. Congressional inaction, executive uncertainty, and partisan polarization can provide states the opportunity for leadership and innovation in health policy.

EPA to combat climate change after congressional inaction

This chapter argues that the revolutionary changes brought to the South by Reconstruction and black empowerment generated a sustained and violent reaction from southern whites that, by 1900, was successful in restoring white dominance because of restrictive Supreme Court decisions, congressional inaction, and waning public support for civil rights among white northerners. Republicans remained committed to civil rights and deployed federal power to break the Ku Klux Klan in the 1870s, but white southern persistence and divided government in the late 1870s and 1880s compromised this effort. In the 1890s, white Democrats, in control of state and most local governments in the South and fearful of continued black resistance, enacted measures to disfranchise African Americans and impose segregation. Although African Americans continued to resist and enjoyed some successes in the North, by 1900, southern whites had created a repressive racial caste system.

This article presents a legal history of US citizenship in Guam. I argue that members of Guam’s Congress mobilizing for US citizenship in the 1930s and in the immediate aftermath of World War II offer a powerful and instructive example of popular constitutionalism, or the interactive, extrajudicial process that generates constitutional meaning. Guamanians made constitutional claims to US naval leaders and lawmakers, arguing that colonized people living in the US empire should be US citizens despite ambiguous Supreme Court precedents in the Insular Cases, congressional inaction, and naval obstruction. Guamanians interpreted the Constitution in a way that pressured and influenced naval leaders to support and US lawmakers to ultimately enact legislation that extended citizenship to Guam. This legal history demonstrates the complexity of popular constitutionalism within the context of US empire. By claiming that they should be considered US citizens after the United States formally annexed Guam after the Spanish-American War, Guamanians drew on the Constitution to demand equality, dignity, and full inclusion in the US polity for colonized people. US naval leaders and lawmakers turned this egalitarian reading of the Constitution to their own strategic advantage, however, deploying it as a valuable piece of Cold War propaganda. This article thus provides a useful example of the ideological indeterminacy of popular constitutionalism. The Constitution can be interpreted by marginalized populations to demand equality and inclusion. But the Constitution can also be interpreted by the military and congressional leaders of a global empire to maintain systems of power, oppression, and subordination.

In 2033, American social policy will reach a crossroads when the trust fund for its largest and most successful program runs out. Without Congressional action, Social Security benefits, which constitute most of the retirement income of most senior citizens, will fall by 21 percent. This shortfall has been predicted for three decades, and yet Congress has done nothing. In Fixing Social Security, R. Douglas Arnold applies the model of Congressional behavior from his seminal 1990 book, The Logic of Congressional Action, to analyze why Social Security solvency crises periodically emerge, why Congress has ignored the coming emergency, what lawmakers may do “at the precipice,” and the degree to which the rise of the conservative movement, political polarization, and other features of contemporary American politics will affect the outcome. This incisive, wonderfully well-written book will be of broad interest to the public and to scholars of social policy, Congress, and American politics.

The rapid growth in carbon disclosure in recent years represents a major success in the struggle to build awareness and action on climate change. Despite the Copenhagen debacle and Congressional inaction in the US, the measurement and reporting of carbon emissions at the product, facility and organization levels display considerable momentum. The growth of carbon disclosure is the result of three core drivers: regulatory compliance, pressure from non-governmental organizations (NGOs) and managerial information systems intended to facilitate participation in carbon markets, reduce energy costs and manage reputational risks. In this essay, we argue that the strategies pursued by 'institutional entrepreneurs' have played a key role in the successful institutionalization of carbon disclosure by bringing together companies, NGOs and government agencies. The Carbon Disclosure Project (CDP), in particular, has displayed strategic skill in presenting the project in ways that appeal to multiple stakeholders and building broad legitimacy for reporting standards. Some 3000 organizations in 66 countries around the world now measure and disclose their emissions and climate strategies through CDP (Price Waterhouse Coopers, 2010). Carbon disclosure has become an important institution of governance, raising awareness about climate change, clean energy and energy efficiency, while generating legitimacy for the principle of external accountability. Most importantly, the rise of voluntary carbon disclosure has demonstrated to business the feasibility and potential benefits of carbon measurement and reporting, such as management of reputation and energy costs. In turn, this has opened political space for regulatory initiatives that mandate disclosure and formalize carbon accounting standards. Despite the rapid uptake of carbon disclosure, there are some troubling questions about the trajectory along which the institution is evolving and its ultimate impact. Tensions exist between two 'institutional logics', a corporate logic of carbon risk management and carbon trading, and an NGO-oriented logic based on transparency and accountability. We argue that the field is drifting toward a more corporate logic, and that while this enhances the diffusion of disclosure, it also weakens it as a tool for driving the substantial cuts in greenhouse gas (GHG) emissions needed to address climate change. Our analysis also highlights that building new institutions requires not just discursive strategies to frame issues in a particular way, but also political and economic strategies

Enacted as part of the 2010 Patient Protection and Affordable Care Act, the Independent Payment Advisory Board (IPAB) was hailed by many analysts as a major innovation in US health policy making and cost control. The board promised to put a brake on Medicare spending through an extraordinary combination of budgetary discipline, expert advice, uncommon legislative procedures, and administrative delegation. IPAB embodied the aspirations of technocracy: the board would rise above partisanship and interest group pressures, formulating Medicare policy recommendations based on evidence and reason rather than politics. The special legislative rules and administrative powers associated with IPAB were to be an antidote to both congressional inaction and micromanagement. Those aspirations resonated with many politicians, policy makers, and health services researchers. Yet IPAB has fallen far short of the aspirations and enthusiasm that accompanied its establishment. It has remained in political purgatory, paralyzed by controversy and partisanship. We explore why IPAB has failed to live up to the hype and what the IPAB story tells us about the promise and limits of technocracy in US health care policy.