Congressional Inaction Research Articles (Page 1)

PurposeIn the context of an analysis of stopgap and reactionary presidential library and records act, the purpose of this paper is to consider how the separation of the Obama Presidential Library from the Obama Presidential Center illuminates fundamental flaws in the public-private model that demand a more comprehensive legislative solution.Design/methodology/approachDrawing upon government, academic and public sources, this paper examines the legislation of presidential records and libraries to gain perspective on the presidential library system and the Obama Presidential Center, the first post-Presidential Records Act institution to operate independently of the National Archives and Records Administration (NARA).FindingsThis paper traces the evolution of presidential library statutes and standards to reveal how the genesis of an independent Obama Presidential Center strained an already stressed system, creating significant questions about its future.Originality/valueThis paper offers an original treatment of the statutes governing NARA’s administration of presidential libraries, framing a cycle of calls and responses, with the acts of individual presidents eliciting acts of Congress. Also original, and timely, is the treatment in this paper of how these laws created the conditions for an independent Obama Presidential Center.

Abstract 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.

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.

Objective : to research the right to join in peaceful assembly and petition in the United States of America. Methods : dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological. Results : the right to join in peaceful assembly and petition is critical to an effective democracy and is at the core of the First Amendment. The assault of peaceful protestors in the pursuit of racial justice is not a new phenomenon, and legislators at the federal and state levels have drafted anti-riot provisions as a measure to target protestors they deem an existential threat to American society. As these provisions have become increasingly prevalent in light of the protests following the murders of Breonna Taylor and George Floyd, they have the likelihood of severely chilling the effect on protestors' right to freedom of expression. Scientific novelty : this Note examines these effects, considering the Anti-Riot Act of 1968’s intent to protect the public from violent protestors and, in light of congressional inaction due to ongoing political polarization, asks whether presidential intervention is warranted. More specifically, this Note determines whether the Act's current interpretation meets Congress's intent or subverts the constitutional right to freedom of expression. This Note contends that while persuasive arguments exist both in support for harsher anti-riot provisions and for a novel approach to address public safety, these arguments tend to rely on anecdotal evidence due to the limited scholarship on this topic. Therefore, this Note argues that the president should establish a commission to comprehensively investigate the recent outbreaks of racially motivated protests before potentially moving forward with executive action. Practical significance : the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the right to join in peaceful assembly and petition.

In the wake of the Civil War, Americans contested the relationship between the federal government and states. Conflict over federal authority played out in concrete and surprising terms in a controversy that erupted in 1868 surrounding regulation of international telegraphy. The debate, which has remained largely unexamined, centered on whether a state could authorize a foreign company to land a submarine telegraph cable on American shores without Congress’s permission. Scholars have scrutinized consequences of the revision of federalism for individuals’ rights but have devoted less attention to implications for the nation’s international relations and commerce. The regulation of foreign cables, however, proved a key testing ground for the federal government’s efforts to assert sovereignty before both state authorities and other nations during Reconstruction. The episode revealed varied alliances and sources of opposition that emerged amid attempts to project federal power. It also reflected many Americans’ growing expectations of an expanded role for the national government in commerce and the international sphere—a position the federal government realized only haltingly. Intractable problems of federalism contributed to congressional inaction. While undertaking the formidable work of reconstructing the Union, the United States government struggled to delineate the physical boundaries of its authority.

Obesity-focused health policies, including the landmark Treat and Reduce Obesity Act, have stalled at the federal level over the past decade. Congressional inaction on obesity reflects both misconceptions of obesity as a lifestyle choice and limited awareness for the burden obesity imposes on our health care system. Given these challenges, we argue that health professionals must bolster their efforts to partner with public figures with obesity and to directly educate the public. These strategies may help destigmatize obesity and build awareness of obesity as a disease. Furthermore, we suggest that these strategies may empower patients to flex their unrealized political muscle and demand more from their elected leaders. A bold, multilevel approach that elicits a public demand for change can propel obesity policy into the 21st century.

Presidents routinely overpromise and underdeliver, especially amid partisan polarization, narrow congressional majorities, and persistent gridlock. As Congress routinely stymies their legislative agendas, presidents consider alternative courses of action. We study public reactions to unilateral power in the context of congressional inaction. While some research suggests that presidents cannot afford to pass up opportunities to act, more recent scholarship indicates that the public holds negative views of unilateral power and disapproves of its use. Survey experiments conducted with a national sample of Americans provide evidence of the costs of unilateral power. Across three policy areas and between‐ and within‐respondent analyses, the public responds negatively when presidents exercise unilateral power rather than accept the status quo, even among individuals who share the president's policy views. Our results suggest that while legislative gridlock may increase the appeal of unilateral power, its use may come at a public cost.

ABSTRACT Most climate change actions take place in the international context in terms of multilateral negotiations and accords or in bilateral agreements between heads of the state. Parliaments or legislatures such as the United States Congress are in a crucial position when it comes to converting agreements or aims to action in domestic politics. The United States has played a volatile role in international negotiations on climate change. From categorically rejecting the Kyoto protocol during the George W. Bush administration, President Barack Obama announced that the United States would join the Paris Climate Accord prior to President Donald J. Trump's announcement of the withdrawal of the United States from the Paris Accord. In domestic politics, too, efforts to address climate change have likewise varied. This article explores the complexity of climate change as a political question in the United States and considers the problematic issue that explains why the United States Congress has not have similar momentum to address climate change since the House of Representatives passed cap and trade legislation in 2009. The focus will be on theoretical discussions on congressional inaction and the United States Congress members' views on how and to what extent that institution should play a role in addressing climate change.

While state drug law reform is moving apace, federal drug law reform has moved much more slowly. Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years. But Congress has not acted. As a result, the federal system continues to single out drug offenses for harsh treatment at the bail stage and the sentencing stage—the front end and back end of the federal mass incarceration crisis. In this paper, we argue that federal judges have a critical role to play in future federal drug law reform in light of Congress’ long-standing failures to meaningfully change the laws. At the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention and giving little weight to the Bail Reform Act’s presumption of detention. Data shows that the statutory drug presumption is overbroad and does a poor job of determining who is a risk of flight or a danger to the community. At the back end, judges should issue categorical policy disagreements with the drug sentencing guidelines and the career offender sentencing guideline using the Supreme Court’s blueprint in Kimbrough v. United States. Judges should issue sentences below these guidelines because they are not based on empirical evidence, over-punish drug offenses, and result in racial disparities. At both ends, judges should rest their decisions on the evidence that the drug presumption, the drug sentencing guidelines, and the career offender sentencing guideline are flawed. While judicial action is not a cure for Congressional inaction, it would send a clear message from one co-equal branch of government to another that substantive reform is urgently needed.

Most concerns about delegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions made by such agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic-deficit concerns. The same is true of the judicially created non-delegation canons, such as the major questions doctrine and other clear-statement rules. This Article addresses a different, under-explored dimension of the delegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that was wholly unanticipated by the enacting Congress or could no longer receive legislative support. This problem has taken on added significance in the current era of congressional inaction. To address this distinct, temporal problem of delegation, we suggest that Congress revive the practice of regular reauthorization of statutes that govern federal regulatory action. In some circumstances, this will require Congress to consider adding reauthorization incentives, such as sun-setting provisions. In other regulatory contexts, Congress may well decide the costs of mandatory reauthorization outweigh the benefits. Nevertheless, we argue that Congress should more regularly use this longstanding legislative tool to mitigate the democratic deficits that accompany broad delegations of lawmaking authority to federal agencies and spur more regular legislative engagement with federal regulatory policy. A return to reauthorization would also strengthen the partnership between Congress and the administrative state as well as mitigate some of the major concerns that have been raised in recent years regarding Chevron deference.

The American Federal Reserve’s Board of Governors has been negotiating with the Congress in order to add a third mandate to their longstanding missions of reducing unemployment and inflation. Chairman Powell described this mandate as the mitigation of shrinking GDP. We model this mandate by two axioms, which reveal American GDP as the sole driver of global GDP. The close fit of each model demonstrates that axiomatic venture can discover and corroborate truth via distinct pathways. In view of trade-war and pandemic shocks to GDP worldwide, this third mandate is now compelling. Congressional inaction will reduce global livelihood in a post-pandemic era (https://www.federalreserve.gov/newsevents/testimony/powell20190710a.htm).

Delegation, Time, And Congressional Capacity: A Response To Adler And Walker

Abstract 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.

Immigration policy over the last decade has been characterized by sustained congressional inaction, unilateral executive action, and an intensification of policy activity at the state and local level. The combination of immigration federalism and congressional fecklessness means that, in spite of radical differences in policy intent, Donald Trump’s nativist agenda faces constraints similar to those that undermined Barack Obama’s integrationist agenda. The failure to chart a consistent legislative course for national immigration policy has propelled centrifugal forces at the state and local level, with three consequences. First, state and local governments have grown increasingly assertive in pressing their claims to policy authority via legislation, resolutions, executive actions, and court challenges. Second, wide policy differences have emerged across states, as have policy contradictions and conflicts within some states. Finally, while the federal government retains plenary power over immigration policy, the breadth of state and local laws governing immigrant lives increasingly constitutes a de facto encroachment into that authority.

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.

How a decade of congressional inaction set up today’s debates on an issue crucial to agriculture.

The administrative state has become an increasingly dominant force in American jurisprudence, at times wielding its power even beyond the reach of judicial and legislative control. Notwithstanding the fact that many legal scholars, regulated entities, and politicians have lamented the expanding role of the administrative state, regulatory agencies are more frequently flexing their newly acquired muscle and acting in contravention to traditional notions of checks and balances. In this Article, I examine a burgeoning administrative law phenomenon I term the “threat of law,” whereby an administrative agency unilaterally imposes its regulatory will on regulated entities outside of the traditional boundaries of its rulemaking authority. The regulatory body can exercise this threat of law by issuing regulations grounded in dubious statutory authority and daring regulated entities to challenge them in court. In the absence of Congressional action, regulated entities can be left with the options to comply with the disputable regulation, defy the regulation and face penalties and litigation, or fight an often protracted and expensive court battle to get the regulation overturned. The threat of law also ups the ante for an increasingly impotent Congress. By changing the status quo, the threat of law can push Congress to either act to change the questionable regulation or acquiesce. In order to illustrate the tangible pressure this threat of law can inflict on affected regulatees, this Article focuses on recent actions taken by the Treasury Department in response to the growing tide of corporate tax inversions, whereby entities historically domiciled in the United States move their headquarters to lower-tax jurisdictions. Treasury issued expansive notices attacking inversion transactions, pushing their regulatory powers to the limit. Even though Treasury may have lacked the power to act without congressional intervention, its actions produced a threat of law that, at least temporarily, had the same chilling effect on transactions as a legitimately exercised force of law. This Article will examine this attempt by Treasury to circumvent congressional action. It will explore the efficacy this threat of law can have on an agency’s ability to act swiftly in response to emerging challenges, particularly in the face of congressional gridlock. Moreover, this Article will address the implications an effective threat of law has on an agency’s statutory retroactivity powers, traditional notions underlying Congress’s perceived delegation of authority, and to the level of justiciability protections that these actions should be afforded.

On November 20, 2015, President Obama, frustrated by congressional inaction on immigration, announced an ambitious and potentially transformative prosecutorial discretion policy to forego the deportations of millions of low priority undocumented immigrants. That announcement immediately sparked legal challenges, which have quickly wound their way to the Supreme Court, and nationwide debate about the limits of the President’s prosecutorial discretion authority. President Obama’s actions are part of a larger trend whereby modern presidents have increasingly used robust assertions of prosecutorial discretion powers to achieve policy goals that they could not realize through legislation. There are clear dangers in allowing a president to wield excessive prosecutorial discretion power. Taken to an extreme, in the context of the vast modern administrative state, a president could significantly undermine the will of Congress across a wide array of subject areas and, thereby, upset the separation of powers enshrined in the Constitution. This legitimate concern has led some to argue that a president should not be permitted to exercise prosecutorial discretion categorically or based on her own normative view of the public interest. Categorical normative prosecutorial discretion policies pose the greatest risk of infringing on Congress’ primary policy making role; however, excising normative judgments and agency wide policies is entirely unworkable. The core purposes of prosecutorial discretion — justice, mercy and societal utility — all necessarily require the President to make independent judgments about the wisdom of prosecution. Limiting prosecutorial discretion to case-by-case determinations would be at odds with historic and modern practice and would significantly undermine the institutional design goals of transparency, uniformity and accountability. This Article suggests a new way to think about the boundaries of the President’s prosecutorial discretion authority. Specifically, I propose that the nature of prosecutorial discretion power is dependent on the context of enforcement and that the power is at its zenith when a president exercises her discretion to protect physical liberty. It is in the liberty deprivation context where historical precedent, the Constitution’s structural bias against liberty deprivation and the textual sources of prosecutorial discretion powers all militate in favor of robust presidential powers as a necessary check against excessively punitive statutory schemes.

During oral argument in King v. Burwell, Solicitor General Donald Verrilli cautioned the Court that striking down the administration's interpretation of the Affordable Care Act's (ACA) subsidy provision would cause immediate harmful consequences – leading to millions losing health insurance coverage. Justice Scalia responded that if the Court's decision would lead to such a calamitous result, Congress could surely react to prevent it. Verrilli responded rhetorically Well, this Congress, Your Honor? Verrilli's comments highlight the current state of Congressional gridlock. The 112th and 113th Congresses were two of the most ineffective in history. The current 114th Congress thus far seems similarly unable to reach legislative compromises. The current state of Congressional gridlock raises important policy questions as well as separation of powers concerns. As the exchange between Scalia and Verrilli suggests, Congress's inability to respond to Supreme Court decisions raises the specter that the Supreme Court might decide cases differently than it otherwise would in an effort to avoid incurable consequences resulting from the Court's decision. On the other hand, if the Court ignores Congressional gridlock it may strike down a statute in a fashion that creates draconian results without a potential remedy. These concerns are exacerbated by the fact that the Roberts Court has faced, and will likely continue to face, numerous important challenges to Congressional enactments effecting large numbers of Americans. This essay discusses the Roberts Court in the current age of Congressional gridlock. It examines relevant opinions by the Court and comments by the Justices in an attempt to better understand how the Court views its own role during a time of Congressional inaction.

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.