Congressional Lawmaking Research Articles

Lawmakers try again with revived methadone prescribing bill

As if the Substance Abuse and Mental Health Services Administration (SAMHSA) did not have a massive proposed rule reforming treatment with methadone — but keeping Opioid Treatment Programs (OTPs) in charge — congressional lawmakers have again tried to pass a bill that would make prescriptions of methadone for opioid use disorder (OUD) available from any addiction clinician, and allow pharmacies to dispense methadone for OUD.

Race, Post-Reconstruction Politics, and the Birth of Federal Support for Black Colleges

AbstractIn 1890, Congress passed the Second Morrill Land-Grant Act, which provided federal resources to support the creation of nineteen Black land-grant colleges. At a historical and political moment when Black Americans faced a violently repressive backlash against what progress they had achieved during Reconstruction, the successful passage and implementation of this legislation was unlikely. How did congressional lawmakers successfully pass the Morrill Land-Grant Act of 1890, and was the expansion of educational opportunity for African Americans a clearly expressed objective? Using historical analysis of primary sources, this analysis suggests that the 1890 legislation’s investment in Black colleges reflected a politically expedient compromise between northern Radical Republicans who supported greater educational access for Black citizens and Southern Democrats who wished to expand higher educational opportunity in their region while also maintaining the segregated racial order of southern educational institutions.

Why Carr v. Saul Should Signal the End of Common Law Issue Exhaustion in Inquisitorial Proceedings

This past April, the Supreme Court in Carr v. Saul, unanimously held that claimants need not have raised at the social security administration’s (SSA) hearing stage, an Article II Appointments Clause challenge to the appointment of their administrative law judges (ALJ), to preserve these structural constitutional issues for judicial review under the common law issue exhaustion doctrine. The Court’s decision extended a 2000 decision by a bare majority of the Court in Sims v. Apfel, categorically rejecting common law issue exhaustion for SSA’s inquisitorial administrative appeals stage of review but reserving the question of applying it at the hearing stage. In this year’s Carr decision, however, the Court also reserved the additional question whether common law issue exhaustion should more broadly apply to bar judicial review of “routine” (non-structural constitutional) objections not raised at the hearing—an issue which divided the Justices in separate concurring opinions. Since SSA annually adjudicates approximately 800,000 disability benefits hearings, virtually all involving “routine” issues with critical life support benefits for medically infirm and low-income persons at stake, this open question has raised serious concerns for claimants and agency adjudicators alike. This article addresses the important question reserved by the Court in Carr. It concludes that the Carr Court’s reasoning should put to rest the debate over the propriety of judicially created issue exhaustion in any inquisitorial SSA adjudicative proceeding, including those at the ALJ hearing stage involving “routine” issues. The Carr and Sims decisions require express consideration of the non-adversarial and informal nature of the adjudication context in question and those considerations will decisively weigh against common law issue exhaustion’s application to any of SSA’s inquisitorial proceedings. The federal courts’ extension of common law issue exhaustion into these proceedings was mistaken from the outset and heedlessly adapted from inapposite and questionably supported precedents from adversarial adjudicative systems. Its further application should be discontinued, and any further consideration of its use in inquisitorial SSA proceedings should be confined to the open, deliberative, participatory and democratically accountable regulatory rulemaking or congressional lawmaking processes.

US House passes bill to control PFAS

Sweeping legislation to control pollution from per- and polyfluoroalkyl substances (PFAS) in land, water, and air passed the US House of Representatives July 21. If approved by the Senate and signed by President Joe Biden, the measure could cost the fluorochemical industry millions to clean up contaminated sites and restrict releases of PFAS pollution from factories. Chemical manufacturers would also have to sponsor toxicity studies in order to keep their PFAS on the US market. In addition, the bill would forbid introducing new PFAS into US commerce for 5 years. PFAS, a group of more than 9,000 synthetic compounds, are sturdy molecules that withstand harsh conditions and strongly resist degradation in the environment, earning them the nickname “forever chemicals.” Only a small number of these substances have been studied for toxicity, and some are linked to human health problems including birth defects and endocrine disruption. Congressional lawmakers are increasingly concerned

Building Digital Walls and Making Speech and Internet Freedom (or Chinese Technology) Pay for It

More broadly, the tools at the US government’s disposal— IEEPA, Congressional lawmaking authority, and CFIUS review—encourage the use of such flimsy rationale and a lack of transparency, which ultimately promotes such broad bans; and the costs of these bans are dear. There may be First Amendment implications, and at the very least, a chilling of speech. There are also significant impacts on American foreign policy, from legitimizing the Chinese strategy of cybersovereignty and government regulation, to the creation of incentives to localize data in a manner that might undermine American law enforcement efforts.

Transformation of Congressional Lawmaking by the Clean Air Act Amendments of 1970 and Its Effects

From the 19th Century to the early 1970s the U.S. was consistently at the frontier of publicly relevant technology and policy advances. The Clean Air Act Amendments of 1970 (CAA) continued this tradition. However, the CAA transformed conventions for Congressional lawmaking in ways that had unintended negative effects on federal government operations, environmental management, and U.S. society. The CAA’s bipartisan framers came together at a time of environmental crisis and skepticism over federal regulators’ stewardship over the nation’s environment. Manufacturing and industry were prime sources of pollution. The framers feared that the formers’ economic and political power would influence regulators. The CAA therefore broke previous norms for lawmaking by giving the Environmental Protection Agency comprehensive national authority over air pollution and prescribing operational detail. In effect, Congress became the sheriff and the Environmental Protection Agency became the summons server for environmental policy. With powerful teeth, the CAA of 1970 and subsequent laws influenced by CAA precedents achieved rapid progress in controlling pollution. However, they replaced trust in federal agencies and cooperation between government and the private sector by regulations and punitive provisions, arousing antagonism in the business community. The results included deindustrialization, with mass exodus of business from manufacturing; litigiousness; barriers to innovation in environmental technology and policy; and perpetual battle over environmental regulation. Attempts by business and conservative-linked groups to reform regulatory policy were unsuccessful because they mainly sought inhibitions on the regulatory process. They failed to consider deep concerns of the environmental community and fundamental flaws in the regulatory system.

Laboratory-developed test regulation and the immunocompromised patient: uncertainty ahead.

Laboratory-developed tests (LDTs) are essential for the clinical care of immunocompromised individuals. These patients often require specialized testing not available from commercial manufacturers and are therefore dependent on the laboratory to create, validate, and perform these assays. Recent paradigm-shifting legislation could alter the way that LDTs are operationalized and regulated. On March 5th, 2020 the Verifying Accurate and Leading-Edge In-Vitro Clinical Tests Development Act (VALID) was introduced in the US Congress. This statute would overhaul existing regulatory framework by unifying the oversight of LDTs and commercial in-vitro diagnostic tests (IVDs) through the FDA. If enacted, LDTs would be subject to regulatory requirements like those found in commercial submissions for market review. Stakeholders continue to discuss the details and scope of the proposed legislation in the setting of the Severe Acute Respiratory Syndrome Coronavirus 2 pandemic, where LDTs are integral to the national COVID-19 response. Congressional lawmakers have introduced legislation to alter the regulatory framework governing LDTs. Moving forward, a balance must be struck to ensure the availability of safe and accurate testing without delays or overregulation that could be harmful to patients. The downstream implications of how VALID and other legislation will impact laboratories, clinicians, and patients warrant close examination.

Emotional responses to climate change map framing using facial emotion recognition technology

Emotional responses to climate change map framing using facial emotion recognition technology

Visible States and Invisible Nation: Newspaper Coverage of Nineteenth-Century Lawmaking

Abstract:Researchers and the public alike have long recognized that in American politics visibility matters. To claim credit for policies, to recruit supporters, and to maintain democratic legitimacy, the lawmaking process must be visible to the American public. Yet little is known about how the public perceived the legislative process during the nineteenth century. This article uses systematic qualitative and quantitative analysis of newspapers in Baltimore, Maryland, Portland, Maine, and Charleston, South Carolina, to measure the comparative visibility of lawmaking at the state and federal levels between 1830 and 1880. The research demonstrates how analysis of newspaper coverage can be used to better understand public perceptions of state and federal lawmaking during time periods without polling data. The visibility of congressional lawmaking varied greatly from one state to the next, and competition for coverage between state legislatures and Congress remained strong across the country throughout the studied period.

Southern Nation: Congress and White Supremacy after Reconstruction by David A. Bateman, Ira Katznelson, and John S. Lapinski

Reviewed by: Southern Nation: Congress and White Supremacy after Reconstructionby David A. Bateman, Ira Katznelson, and John S. Lapinski Angie Maxwell Southern Nation: Congress and White Supremacy after Reconstruction. By David A. Bateman, Ira Katznelson, and John S. Lapinski. Princeton Studies in American Politics: Historical, International, and Comparative Perspectives. ( Princeton and Oxford, Eng.: Princeton University Press, 2018. Pp. x, 468. $35.00, ISBN 978-0-691-12649-4.) Southern Nation: Congress and White Supremacy after Reconstructionprovides scholars of the U.S. South with something they rarely have and desperately need: a quantitative political history. The book's historical narrative provides a nuanced chronology that the authors have meticulously crafted, and the quantitative analysis offers a broad view of the real impact of their subject over time. In this case, the subject is the southern members of the U.S. Congress in the six decades after Reconstruction. The authors make a strong argument for why the region deserves such attention and why the reestablishment of white rule in the Jim Crow South had such a major impact on the national body politic. As authors David A. Bateman, Ira Katznelson, and John S. Lapinski note in chapter 1, V. O. Key Jr. undertook his landmark study Southern Politics in State and Nation(New York, 1949) to explain the political behavior of the region to the nation at large. Southern Nationtraces the repercussions of that political behavior for the rest of the country in two critical periods: the post-Reconstruction reestablishment of southern white power and what the authors describe as "the high moment of Jim Crow when the white South came to be the dominant force in the Democratic Party and the Republican Party conceded southern autonomy" (p. 17). In doing so, the authors manage to complicate popular understandings of a solid, conservative white South. For example, in their analysis the authors highlight how southern support in Congress proved vital to the passage of several Progressive policies in the early twentieth century. Though elites, desperate to prevent an alliance of poor white people and African Americans, often found ways to squash Populist uprisings internally in the South, they supported some Populist policies at the federal level. They could do so, and could even cross party lines on some issues nationally, because they maintained such power in the South's one-party politics. Incumbency was often guaranteed, which gave some white southern congressmen more flexibility than those facing tough reelections. However, such flexibility could not coexist with any sense of threat to the southern racial hierarchy. In those moments when national legislation endangered white supremacy, southern congressional delegations [End Page 714]were a united, defensive front. That front proved highly effective at obstructing federal efforts—direct or indirect—to level any aspect of the racial playing field. To this end, southern white congressmen wielded enormous power. On nonracial issues, their incumbency advantage allowed them to be swing votes, but on any legislation affecting race relations, they were a block of massive resistance. They weighed their hope for federal improvements in the region against their fear of too much federal interference, all the while balancing their "constellation of commitments" to white authority, to populism in a general sense, and "to constituency needs in a poor region" (p. 384). Nonsouthern congressmen, in turn, had to sidestep any legislative land mines that would spark the southern defensive block, while simultaneously courting the swing or crossover votes of southern congressmen. The authors make the important point that, rather than being aberrant, southern congressional political behavior bent national politics to its will. It was the central force to which federal legislative agendas had to react and be shaped accordingly. This conclusion indicates, the authors note, "the need to modify theories of congressional lawmaking to account for the exceptional features of southern representation in national politics" (p. 41). The data presented in Southern Nationshould influence the historiography as well. The authors quantify and then dissect the political solid South narrative, highlighting each little crack and repair, and showing how the region "played a key role in developing the content and contours of American liberalism" (p. 384). Angie Maxwell University of Arkansas Copyright © 2019 The Southern...

Options to Restore More Discretion to the Federal Budget

will manually insertUS fiscal policy has long been unsustainable, driven largely by automatically growing entitlement spending and insufficient revenues. Often overlooked is the extent to which this preordained fiscal policy limits policymakers’ discretion to act on new priorities each year, whether through newly legislated increases in spending or through tax reductions. This study lays out reforms to the federal budget process that could restore greater discretion to congressional lawmakers, so that a greater share of revenues is not automatically allocated without any vote by a current Congress. Such reforms include various triggers in entitlement and tax programs that limit their automatic growth, more transparent reporting and informative displays of budget information, and more requirements to subject programs to periodic review and reauthorization. Examples are provided for how such reforms could be applied to specific entitlement and tax programs.

The Volcker Rule: a brief political history

Today, more than five years after Dodd-Frank was first signed into law, uncertainty surrounds many aspects of the Volcker Rule’s application and ultimate impact on financial markets and bank stability. Many more years will likely pass before that uncertainty is resolved. We demonstrate through a quantitative and qualitative analysis that these difficulties were presaged by the Volcker Rule’s political history. The Volcker Rule -- originally rejected by Congressional lawmakers and economists within the Obama administration as unworkable -- arose as a political concession designed to quiet critics who contended that Dodd-Frank did not do enough to control risky bank activity. But deep divisions about the proper scope of the rule persisted even as the statute was signed into law, ensuring that these debates continued into the rulemaking phase. Efforts to influence the Volcker Rule at the agency level began immediately after presidential signing and persisted until enactment of the final rule. Those expressing an opinion on the rule included affected industry members, academics, public interest groups, private individuals, and state and foreign governments, among others. Systematic analyses of meeting logs and comment letters reveal that much of this activity involved the market making exemption. Specifically, commenters disputed how broadly the exemption should be interpreted and applied, the extent to which limitations on banks’ abilities to make markets would reduce market liquidity, and the likely costs of any such reduction, should it occur.

Arbitration and Inalienability: A Critique of the Vindication of Rights Doctrine

Courts and scholars have long struggled to harmonize the Federal Arbitration Act and other federal statutes. Currently, judges invalidate arbitration clauses that prevent a plaintiff from vindicating her public law rights. This principle, the vindication of rights doctrine, is an arbitration-specific application of the statutory waiver rule: the idea that parties cannot prospectively waive congressionally-created entitlements. However, because the policy basis of the statutory waiver rule has never been clear, jurisdictions disagree about how to implement the vindication of rights doctrine. In this contribution to the Kansas Law Review’s Perspectives on the Current State of Arbitration Law Symposium, I seek to understand the statutory waiver rule and the vindication of rights doctrine by situating them within a larger context: the debate over inalienability. Infants, sexual services, body parts, and basic civic duties cannot be exchanged for consideration. I consider whether common justifications for these fissures in the market — concern about information failures, externalities, and commodification — can explain why future federal statutory claims are immune from freedom of contract. I conclude that, to some degree, each rationale for inalienability also underlies the statutory waiver rule and the vindication of rights doctrine. Nevertheless, I argue that these principles are best explained as an attempt to preserve the distinctive qualities of congressional lawmaking in an era where private parties exercise legislative-like power. I claim that courts can further this goal by nullifying one-sided arbitration clauses that do not serve arbitration-related purposes and thus are blatant attempts to rewrite the public laws.

Strategic Intercameral Behavior and the Sequence of Congressional Lawmaking

In the vein of some fledgling theoretical work on Congress, I look for evidence of strategic intercameral behavior in the chamber sequence of the passage of 950 bills from 1955 to 2002. Specifically, I construct and test a semiformal model in which communication is assumed to take place between congressional majority party leaders capable of choreographing bill passage using their agenda control powers. These leaders allow the chamber with the majority whose ideal point is furthest from the president's to pass its version of the bill first. The empirical analysis corroborates the model.

Congressional Descent: The Demise of Deliberative Democracy in Environmental Law

In recent years, the formal environmental lawmaking dimension of Congress has become effectively moribund. Earlier Congresses were, by contrast, celebrated for enacting sweeping, demanding environmental laws and for passing significant and increasingly detailed amendments in response to subsequent developments in executive branch agencies, federal courts, and the states. Now, Congress passes almost no coherent, comprehensive environmental legislation and displays no ability to deliberate openly and systematically in response to changing circumstances and new information. Instead, when Congress does now exercise its lawmaking authorities to influence environmental protection policy, it does so primarily through the appropriations process: the sphere of its responsibility that, ironically, has proven to be the least conducive to the kind of deliberative democracy that justifies legislative supremacy in environmental lawmaking. This article describes the ascent and descent of Congress in environmental law, discusses the troublesome implications for environmental law of the increasing dominance of the appropriations process in congressional lawmaking, identifies the major causes of these developments, and concludes by offering some possibilities for congressional reform.

The Purposes of Framework Legislation

Much recent scholarship studying Congress has focused on issues of institutional design and assessed procedural innovations to determine why rules have been changed or retained and to describe the effects of certain design features on outcomes. Notwithstanding the focus on procedure, one component of contemporary legislative process has not received sustained attention. There is no systematic study of legislation. Framework legislation creates rules that structure congressional lawmaking; these laws establish internal procedures that will shape legislative deliberation and voting with respect only to certain laws or decisions in the future. Often these procedural frameworks are part of more comprehensive laws that include delegations of authority to the executive branch or that have legal effects beyond shaping congressional procedure. Although these aspects of the laws that include framework legislation are relevant to the details of the framework and may explain why Congress decides to set up a framework, my objective is to focus primarily on the internal procedures, discussing the larger context only as it illuminates the decision to use frameworks and their design. This paper begins the study of framework legislation as a distinct legislative phenomenon in the United States. In this article, I first provide specific examples of framework laws. I then present five purposes served by framework legislation: enacting a symbolic response to a problem salient to voters; providing neutral rules for future decision making; solving collective action problems in areas where they are particularly acute; entrenching certain macro-objectives so that future decisions are more likely to align with them; and changing the internal balance of power in Congress. With a clearer understanding of the purpose of framework legislation, future work can more systematically describe its effects on the legislative process and provide recommendations for its use and reform.

Congressional Supervision of America's Secret Agencies: The Experience and Legacy of the Church Committee

In 1947, the United States created a modern intelligence community to guard against another surprise attack like the one at Pearl Harbor. This community consists of 13 major agencies, among them the CIA and the FBI. Concealed from public view, they pose a significant challenge to the concept of government accountability in a democratic society. This article examines the failure of congressional lawmakers to hold the secret agencies accountable during the Cold War. Contrary to recent theoretical research on legislative oversight, which suggests reasons that accountability has been strong in the United States, this study finds that a weak system of legislative review has permitted a dangerous erosion of civil liberties. The study also explores the efforts of the Church Committee in 1975 to fashion new safeguards that would reduce the probability of further abuse of power by the intelligence community.

Consequences of the Rehnquist Court's Federalism Decisions for Congressional Lawmaking

Scholars generally agree on the doctrinal significance of the Rehnquist Court's post-1990 federalism decisions, but there is less agreement about the consequences of these decisions. A previous study examined the direct consequences of these decisions, by inquiring into the extent to which Congress was able to revise and reenact statutes that were struck down by the Court, but it left unexamined the effects on Congress's ability to legislate in other areas. This article assesses the indirect consequences of these decisions by tracing their effects on the drafting of and debate over bills other than the ones directly invalidated by the Court. It turns out that these decisions have had only a limited effect on Congress's ability to draft constitutionally acceptable legislation, but they have had an important effect on the debate over the passage of several pieces of legislation, whether by handing opponents arguments to oppose the bills or by providing members of Congress with means to explain voles that would otherwise be difficult to defend. Copyright 2004, Oxford University Press.

How a Bill Becomes a Law in China: Stages and Processes in Lawmaking

Thirty years ago, in his landmark study of how “a bill becomes a law” in the United States, Daniel Berman reminded constitutional scholars that policy-making processes have an enormous impact on the content of the laws they produce, and are not mere “technical devices” designed to permit orderly Congressional lawmaking. This article begins from the assertion that 16 years after the beginning of China's post-Mao political and legal reforms, scholars of Chinese politics and law need to pay greater attention to the impact which lawmaking processes have on the content of the laws and policies that this system produces. Specifically, it asks the following questions. First, how are national-level laws drafted in post-Mao China, and what are the politics of the lawmaking process? Secondly, what factors in the process affect the “life chances” of a particular draft law? That is, why do some laws win a place on the legislative agenda, while most drafts languish in obscurity, and still others emerge briefly, only to disappear later into the bureaucratic swamp? And finally, what systematic impact, if any, do the politics of the lawmaking process have on the content of the laws which the system produces?

President and Congress: Executive Hegemony at the Crossroads of American Government, by Robert J. Spitzer

Preface Acknowledgments Introduction 1. Foundations of the Presidential-Congressional Relationship Antecedents The Founders' Fears Fear of a Strong Executive Fear of a Strong Legislature Fear of Concentrated Power Fear of Governmental Paralysis The Constitutional Framework Conclusion 2. The Evolving Relationship Case I: The First Congress, 1789-1791 Politics as Usual What's in a Name? The Government Seat Debt Funding and Assumption Assessment The Evolving Relationship The Jacksonian Era Case II: The Twenty-Seventh Congress, 1841-1843 Assessment The Road to a Stronger Presidency The Civil War-Reconstruction Era The Ascendancy of the Modern Strong Presidency Conclusion: Explaining the Changing Relationship 3. The Domestic Realm I: The Legislative Presidency Chief Legislator Why a Legislative President? An Administrative Congress? Setting the Agenda Central Clearance Liaison Lobbying from the White House The President's Full-Court Press Party Leadership Patronage Rallying Public Support Controlling the Endgame: The Veto Presidential Success: Measuring the President's Batting Average Conclusion 4. The Domestic Realm II: Explaining Presidential-Congressional Interactions Political Explanation: Presidential Leadership Leadership and Presidential Power Leadership Qualities and Congress Assessment Historical Explanation: Budgeting From Legislative to Executive Budget Congress Awakens Executive Counterpunch Assessment Legal Explanation: The Legislative Veto Congress Gets a Veto Arguments Pro and Con The Court Rules... ...But the Veto Remains Assessment Policy Explanation: Policy Types The Arenas of Power The Four Presidencies Assessment Conclusion 5. Foreign Affairs I: Who Steers the Ship of State? The Executive-Legislative Balance and the Constitution Are There Two Presidencies? Why Presidential Ascendancy? Powers and Military Force The Founders and Imperfect Wars The Evolution of the Power The Powers Resolution The Powers Resolution in Operation... ...or, Oh, What a Lovely War Presidential Making Conclusion: Pacificus Prevails 6. Foreign Affairs II: Ah, Diplomacy! Treaties and Executive Agreements Ending Treaties Treaty-Making Success: The Panama Canal Treaties Treaty-Making Failure: The SALT II Treaty Assessment: Treaties, the President, and Congress Executive Agreements Arms Sales and the Changing Role of the United States in the World The Saudi Arms Deal Foreign Aid Intermestic Issues The President, Congress, and Intelligence Iran-Contra Conclusion 7. Conclusion: Is the Separation of Powers Obsolete? The Presidential-Congressional Relationship: Marginal or Hegemonic? The Ineffectual Congress/Ascendant President Argument Terms and Parties The End of Congressional Lawmaking Is Change Desirable? The Congress/Weak President Argument The Legalism Critique The Imperial Congress Executive Absurdism Were the Founders Wrong? Separation of Powers and Alternatives Retaining and Executive-Hegemonic Separation of Powers The Rules and Outcomes The Presidency and Democracy Appendix A: The Politics of the Modern Presidency Appendix B: The Politics of the Modern Congress Selected Bibliography Index