Early Congress Research Articles

The Early Years of Congress’s Anti-Removal Power

Abstract Judges and scholars have long debated whether the Constitution provides the president with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the president’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the president to remove principal officers—even those whose views are out of the step with the president’s—because the president cannot know whether the Senate will consent to a preferred replacement. This is an example of what is dubbed Congress’s anti-removal power: Even if the president can remove, a motivated Congress can discourage the president’s use of that power. In ‘Congress’s Anti-Removal Power’, we used game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argued that such tools have been a longstanding feature of interbranch relations. This article focuses on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but is also a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. The article thus concludes—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding-era thought and practice.

(286–289) Proposals on institutional votes, especially to reduce geographical imbalance

(286–289) Proposals on institutional votes, especially to reduce geographical imbalance

Contesting the Colonizer or Hopeless Submission? Colonialism, Indigeneity, and Environmental Thinking in India, 1857–1910

Abstract This article examines in detail how the forms of national or indigenous consciousness emerged in the sphere of Indian political ecology between 1857 and 1910. The subjects of “ecological indigeneity” and “dispossession” formed as defining characteristics in the articulation of this ecopolitical thinking. The scholarship to date has produced voluminous writings on the political, economic, and social dimension of the histories of colonial unrest, but it has not adequately addressed the issue of how the subtext of environmentalism greatly mattered in shaping some of the resistance movements. Focusing on the period between the 1857 revolt and 1910, this study evaluates three groups – (1) the 1857 Indian rebels and the Gonds; (2) the ādivāsī tribes of Bastar in 1910; and (3) the early Indian Congress Nationalists in the 1880s – to elucidate the emergence of environmentalism and indigenous dispossession in colonial India, which became foundational in critiquing British interventionist policies.

A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

The Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested in recent opinions that they are open to the far-reaching theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking’s constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics’ main response has been that these early statutes do not count, because they fall into two areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: noncoercive legislation (e.g., giving benefits) or foreign-affairs legislation. This Article finds that the originalist critics of rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counterexample missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the “direct tax” of 1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties’ respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was “worth in money”—a standard that the legislation did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with the power to divide the state into districts and to raise or lower the assessors’ valuations of all real estate in any district by any proportion “as shall appear to be just and equitable”—a phrase undefined in the statute and not a term of art. The federal boards’ power to revise valuations en masse in each intrastate tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal real-estate tax burden within the state it covered. This Article is the first study of the federal boards’ mass-revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, then the nation’s third-largest city, by 100 percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method; (c) had a major political aspect, as the federal boards were inheriting the contentious land-tax politics that had previously raged within the state legislatures, pitting the typical state’s rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards’ power was consistent with original meaning or, alternatively, with the Constitution’s liquidated meaning. In short, vesting administrators with discretionary power to make politically charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution into practice. More broadly, this Article is the first in-depth treatment of the 1798 direct tax’s administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution’s first two decades. It is remarkable that today’s passionate debate on whether the administrative regulatory state violates the Framers’ Constitution has so far made no reckoning with this endeavor. (This Article’s dataset is available at: https://doi.org/10.7910/DVN/IGMJ7E.)

The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp

Reviewed by: The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp Aviam Soifer Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge: Harvard Univ. Press, 2018). Pp. 464; $35.00 cloth. The Second Creation by Jonathan Gienapp is a remarkable book. Gienapp has done impressive original research, and he writes about complex matters with admirable clarity. He also powerfully makes the point that the Constitution, as it emerged from the sweaty Philadelphia Convention in September 1787, left a large number of core constitutional issues unresolved or ambiguous at best. Others have shared this view, but Gienapp drives it home in useful ways. Though the constitutional ratification process in state conventions played an important role in Chief Justice John Marshall’s subsequent discourse on federalism and national power in McCulloch v. Maryland, the checkered history of these ratifying conventions hardly clarifies a number of important structural issues. Gienapp’s sophisticated and detailed study focuses on perceptions of the federal Constitution during the 1790s.1 He probes constitutional discourse in the context of four intense controversies in the earliest years of the American Republic to illuminate the “constitutional imaginary” of leading governmental players when “the American Constitution was breathtakingly novel and, because of that, a profound unknown” (4). To some, Gienapp’s claim that the “tumultuous decade” that followed state ratification in 1789 “did as much to mold the Constitution into what it became as anything that came before” will seem overstated (4). Nonetheless, his enlightening discourse is certain to enrich constitutional understanding, even among experts and certainly among members of the general public. Gienapp argues that the Constitution when ratified was “a profound unknown” which had breathtaking novelty; he devotes many careful pages to an astute analysis of the push-and-pull, primarily by members of the early Congresses, to fill in the blanks (4). He focuses primarily on four congressional battles over constitutional questions: (1) whether the president possessed sole authority to remove executive officers, including those appointed with the advice and consent of the Senate; (2) whether constitutional amendments ought to be inserted into the existing text of the Constitution or to be included in a supplementary section; (3) whether there was adequate constitutional authority to charter a national bank; and (4) whether Congress had the power to demand information prior to implementation of the Jay Treaty. The book makes many contributions, and it helps that Gienapp is attentive to imaginative possibilities— his term is “constitutional imaginaries” (10)—that powered early, intense debates at a time when it was not yet generally accepted that the Constitution itself was “fixed” or “locked in place” (19). Gienapp is a clear-eyed guide to debates in which “Federalists and Anti-Federalists punched and counter-punched so rapidly that it was hard for observers to see the debate whole” (76). The debates about the extent of the powers of the Executive remain lively, and largely unsettled, to this day.2 The little-known incorporation debate about James Madison’s proposal to intersperse amendments with the original constitutional text, which was unrealistic at best—though interspersing amendments might have enlightened future generations about what those who proposed new [End Page 1078] amendments believed such amendments actually entailed. Whether a bank charter was within the federal power articulated in “the sweeping clause”—as Article I’s Necessary and Proper Clause came to be called—evolved into a perennial battle, ultimately not settled until Chief Justice Marshall handed down his magisterial unanimous opinion in McCulloch v. Maryland. Marshall noted in McCulloch that even earlier opponents—making an obvious reference to James Madison—had come around to supporting broad federal power to charter a national bank. And, if anything, President Washington’s embrace of the Executive’s broad treaty-making power has prevailed in the courts as well as apparently in public opinion ever since.3 Unsurprisingly, it is James Madison’s speeches that often are at the center of Gienapp’s analysis; Gienapp justly celebrates Madison for his sophistication, including with a specific focus on Madison’s Federalist 37 and his “incisive examination of language,” including Madison’s discussion of “epistemological uncertainty and the frailty of...

Tenure of Office and the Treasury: The Constitution and Control over National Financial Policy, 1787 to 1867

The disputed scope of the President’s authority to remove subordinates in the executive branch, and to direct them in the performance of their functions, is one of the central issues of federal constitutional law. On the one hand, some argue that Article II gives the President such authority. By contrast, others claim that the Constitution allows Congress to regulate the tenure of office of executive branch officers by limiting the President’s removal power. In the context of this debate, some have argued that financial institutions—the components of the “treasury”—were historically insulated from presidential control. They rely on early Congresses’ creation of several commissions with the Chief Justice as a member, establishment of the First and Second Banks of the United States, and use of distinct language to establish the Department of the Treasury and some of its officers. This Article shows that these claims are incorrect. Drawing on congressional and executive sources, case law, and contemporaneous treatises, this Article demonstrates that the prevailing view in the years between the Constitution’s adoption and the impeachment trial of Andrew Johnson was that financial government institutions were no different from other parts of the federal government for purposes of presidential control. The President had the constitutional authority to remove officials within the Department of the Treasury. The institutions over which presidential control was conspicuously lacking—the First and Second Banks of the United States—were generally understood to be private, rather than arms of the government, and to perform non-sovereign functions. But to the extent the Bank was understood to perform sovereign functions, its opponents argued that it did so impermissibly, using a variation of the modern argument that Congress may not delegate such functions to private entities. This Article’s exploration of these issues both bears on contemporary debates about the scope of the President’s removal power and shows how early expositors of the Constitution understood the allocation of federal government control over national financial policy.

The role of new media in political campaigns: A case study of social media campaigning for the 2019 general elections

Democracy is the best form of governance. We have tried other forms and concluded that, there may be some flaws but compared to the rest, democracy triumphs. Political process is part and parcel of democracy. Political parties compete with one another through ideology and vision for the people and the country. People evaluate the parties and their programmes and vote for the candidate they think will deliver good governance to them. Whenever their hopes are dashed, they wait to change the government through the ballot. In all of this, media plays a vital role. It not only informs but provides a forum for debate and discussion for the masses on important issues. Media has been credited with the power to influence enough people to bring about change in government. Today, new media or digital media has revolutionized the way we communicate. User-generated content in the form of text, photos, videos and podcast has put the power in the hands of ordinary people. Social media is a ubiquitous means of sharing content by many to many. Political parties are now using Facebook and Twitter to reach and influence voters. Voters on the other hand are not passive but use the social media to inform, comment and forward messages that has the potential to reach millions. The campaign for the April-May 2019 Indian Parliamentary elections will see an increase in the use of social media tools like Facebook, WhatsApp and Twitter. Social media cells of major political parties are gearing up for social media war that will decide the fate of many urban seats in the General Elections. This study examines the social media campaign of the three major political parties in the Karnataka context. BJP has an edge due to the early start, but both Congress and JD(S) are catching up. BJP is on the back foot as it is the ruling party and Congress for a change has the advantage to win the perception battle.

Making the ‘Trump Emoluments Suits’ Into a 2018 Bi-Partisan Engine for Change: Using the Emoluments Suits to Examine Pritzker and Kerry As Well As Trump, and Stop the Emoluments Taint in All Parties

Making the ‘Trump Emoluments Suits’ Into a 2018 Bi-Partisan Engine for Change: Using the Emoluments Suits to Examine Pritzker and Kerry As Well As Trump, and Stop the Emoluments Taint in All Parties

The Rise and Decline of Select Committees in Congress

We examine the development of the committee system of the U.S. House of Representatives from the 1st to 20th Congress (1789–1829), focusing on the select committee system. The First Congress did not have any legislative standing committees, but relied instead on a series of ad hoc select committees. Across the period covered in this paper, select committees were replaced by standing committees, measured by the number of committees appointed and the percentage of House members appointed to the two types of committees. However, we find that, although membership on standing committees did not become universal until the 1820s, even by 1800 most legislative business brought before the House was removed from the select committees and channeled to standing committees. We also find, contrary to claims that the early Congress was characterized by strong norms of legislator equality, select committee appointments were more likely to be given to veteran House members, majority party members, and members with a college education. This preliminary paper reopens a strand of analysis that has gone dormant for nearly two decades about how the House eventually settled on a legislative process dominated by standing committees.

A tale of two congresses: the psychological study of psychical, occult, and religious phenomena, 1900-1909.

In so far as researchers viewed psychical, occult, and religious phenomena as both objectively verifiable and resistant to extant scientific explanations, their study posed thorny issues for experimental psychologists. Controversies over the study of psychical and occult phenomena at the Fourth Congress of International Psychology (Paris, 1900) and religious phenomena at the Sixth (Geneva, 1909) raise the question of why the latter was accepted as a legitimate object of study, whereas the former was not. Comparison of the Congresses suggests that those interested in the study of religion were willing to forego the quest for objective evidence and focus on experience, whereas those most invested in psychical research were not. The shift in focus did not overcome many of the methodological difficulties. Sub-specialization formalized distinctions between psychical, religious, and pathological phenomena; obscured similarities; and undercut the nascent comparative study of unusual experiences that had emerged at the early Congresses.

Commandeering and Constitutional Change

Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of historical evidence, however, inverted Founding-era perspectives. When Federalists such as Alexander Hamilton endorsed commandeering during the ratification debates, they were not seeking to expand federal power. Quite the opposite. The Federalists capitulated to states’ rights advocates who had recently rejected a continental impost tax because Hamilton, among others, insisted on hiring federal collectors rather than commandeering state collectors. The commandeering power, it turns out, was an integral aspect of the Anti-Federalist agenda because it facilitated federal use of state and local officers, thus ensuring greater local control over federal law enforcement and averting the need for a bloated federal bureaucracy. These priorities carried over into the First Congress, where Anti-Federalists were among the most vehement defenders of the federal power to commandeer state executive and judicial officers. Ironically, though understandably when viewed in context, it was Federalists who first planted the seeds of the anticommandeering doctrine. Incorporating recently uncovered sources and new interpretations, this Article aims to significantly revise our understanding of Founding-era attitudes towards federal commandeering of state officers. Moreover, the Article explains why early Congresses generally shunned the use of state officers and how this custom combined with shifting political priorities to quickly erode what once had been a strong consensus favoring commandeering’s constitutionality.

The origins and impact of the International Congresses of Applied Chemistry, 1894–1912

The First International Congress of Applied Chemistry was organised by the Association of Belgian Chemists in 1894, the eighth and last was held in Washington and New York in 1912. These congresses, unlike the early congresses on pure chemistry, were very successful and held with the highest patronage in the host countries. The ninth planned for St. Petersburg in 1915 was not held due to the intervention of the First World War. The initiative passed to IUPAC but due to political and financial restraints the International Congresses of Pure and Applied Chemistry did not commence till 1934.

Canon Shortfalls and the Virtues of Political Branch Interpretive Assets

This article begins by examining Philip Frickey's treatment of the canons of construction. The article analyzes Frickey's effort to unmask, explaining how he critically assesses descriptive claims that the canons promote more predictable construction of statutes, as well as normative claims that they foster more neutral policy outcomes. Frickey ultimately defends the canons as an institutional resource, of value to the judiciary in certain settings, but he does so in more reserved terms than those offered by canon enthusiasts. The article then expands upon Frickey's concerns by contending that on two separate grounds, the canons should be subordinated to the political branch interpretive assets of legislative history and agency guidance. The first ground involves legitimacy and stems from our separation of powers understanding that in the statutory domain, federal courts are expected to act as agents of the politically accountable branches. The Founders' Article I contribution (authorizing Congress to organize itself in fulfillment of its legislative mission and requiring Congress to publish a record of its legislative proceedings) helped create two notable innovations in legislative design. These design innovations, dating from the earliest Congresses, were the determination to favor detailed public reporting of floor debates and the decision to create permanent standing committees that produced oral and then written committee reports. Taken together, these innovations led to the development of legislative history--formatively during the early and mid nineteenth century--as a means of informing and persuading members of Congress regarding the bills on which they were to vote. Canons lack any comparable constitutional foundation. Nor--unlike legislative history--was their functional role in the lawmaking process recognized by the early Congresses. Because the canons' interpretive validity is fundamentally disconnected from the Article I lawmaking structure and also from the realities of the legislative process, there is reason to question whether courts should value canons to the same extent as interpretive resources produced by Congress.The second ground involves objectivity. Over a period of many decades, the Court's interpretive rubric has given rise to a relatively objective internal hierarchy for contextual resources produced by Congress and also by the executive branch. Certain types of legislative history and agency directives are presumptively valued more than others. Judicial deviations from this hierarchy tend to be accompanied by some explanation for the departure. Importantly, the priorities established for legislative history and agency directives flow from how Congress and the executive function, both in terms of relying on authoritative sources of expertise and valuing deliberative processes. By contrast, there is no recognized ordering of authority within the canonical universe. The Court has never developed rules for harmonizing or prioritizing among the scores of existing canons, many of which the Court has created in recent decades. This lack of an intelligible framework for ordering the canons renders them distinctly more susceptible to judicial manipulation than other interpretive resources.

The Law: Executive Power and Prosecution: Lessons from the Libby Trial and the U.S. Attorney Firings

Presidential control of federal prosecution has created, throughout American history, tensions between realities of political control and ideal of rule of law. While control guarantees a measure of democratic accountability for how law enforcement power is exercised, potential for that political control to become politicized is always there and has periodically erupted in significant scandals in American politics. Between 2003 and 2007, two such scandals occurred, serving to remind us of tenuous balance in federal law enforcement system between accountability and independence and between politics and rule of law. The investigation and prosecution of Vice Dick Cheney's chief of staff, I. Lewis Scooter Libby, by an independent special counsel demonstrates that our long argument about how best to handle criminal allegations against high-ranking branch officials, started in modern context by Watergate, has yet to be resolved. The scandal that erupted in 2007 over firing of U.S. attorneys, leading to resignation of Attorney General Alberto Gonzales, demonstrates that conflict over political control of prosecutorial power is not just isolated to a few high-profile cases. Both cases remind us of importance of attorney general as linchpin in federal justice system between president and prosecutors and difficulties created by dual roles that attorneys general play as both presidential advisors and law enforcement officers. When that delicate balance tips toward political side of job, confidence in impartial administration of justice is undermined. Issues in Executive Control of Prosecution The root of conflict over how much control president should exercise over prosecutorial function lies within U.S. Constitution. The source of authority is found in Article II power to take care that laws be faithfully executed and in president's ability to appoint, by advice and consent of Senate, officers to aid him in execution of law. Advocates of a strong executive understanding of presidential power argue that president has all of law enforcement power because such power is in nature, and that in order to fulfill this Article II command, he must have complete control over officers exercising this power on his behalf. Justice Antonin Scalia argued this position strenuously in his dissent in Morrison v. Olson, 1988 case upholding independent counsel statute. (1) This expansive notion of presidential power, particularly as it relates to prosecution, has been challenged on several fronts. First, historical experience with development of federal prosecution shows that this power was not perceived as inherently executive or under unitary control of in early days of country. Rather, prosecution was highly decentralized and controlled, if at all, not by attorney general but by judicial authorities and through comptroller general (who was, in turn, controlled by Congress) and Department of Treasury (Krent 1989; Lessig and Sunstein 1994). Lawrence Lessig and Cass R. Sunstein contend that if the framers' and early Congresses' actual practice is any indication of their original understanding, then they did not understand prosecution to be within notion of 'executive Power' exclusively, and therefore did not understand it to be within exclusive domain of President (1994, 15-16). Even as federal prosecutorial power expanded and Department of Justice was created in 1870 in an effort to centralize control of federal law enforcement, prosecution remained highly decentralized, with U.S. attorneys operating with a high degree of autonomy from control by Main Justice. The nature of federal system and size and complexity of federal legal apparatus all contributed to relative independence of U. …

Origins of the Non-Delegation Doctrine

This paper explores the philosophical, political, constitutional, and statutory origins of the nondelegation doctrine, especially with respect to the delegation to the executive of the power to make domestic (ius civile) law. The paper will discuss a variety of principles related to delegation to the executive of the power to make law, such as the separation of powers, representation, and the interpretation of statutes. It will look at certain early cases in related areas (as there was no early Supreme Court case on point for delegation to the executive in ius civile statutes), and will focus on an important but little known debate in the early Congress over the non-delegation doctrine in a postal statute. A number of factors and distinctions are uncovered that may shed light on modern nondelegation cases. Distinctions include those between ius gentium (foreign policy) and ius civile (domestic policy) law and between criminal law and civil law. Factors include expertise, representation distance, the degree to which a delegation will combine not only law-making and executive power but also judicial power, and the power given by a delegation to deprive persons of life, liberty, or property.

The Other Supreme Court

Despite the Constitution's one supreme Court language, the Supreme Court came in two flavors for 37 years. From 1802 to 1838, the members of the Court gathered in Washington every winter for a conventional en banc February Term, but then in the summer a single Justice would return to the nation's capital to sit alone as a rump Supreme Court for a short August Term. This odd one-Justice rump Court does not fit the long-standing and widely-accepted understanding that the words one supreme Court mean one [indivisible] supreme Court - a single en banc body consisting of all of its available and qualified members to conduct its business. framers of the Constitution thought that was what they said when they chose those words, as the records of the constitutional convention of 1787 show. Gouverneur Morris, an influential figure in the drafting of the Constitution, recalled this point on the floor of the Senate in 1802: The constitution says, the judicial power shall be vested in one supreme court, and in inferior courts. legislature can therefore only organize one supreme court, but they may establish as many inferior courts as they shall think proper. A couple of generations later, Chief Justice Morrison R. Waite was even more emphatic about the indivisibility of the one Supreme Court. Addressing a banquet in Philadelphia during a celebration of the centennial of the Constitution, while Congress in Washington debated proposals to enlarge and panelize the Court, he said, I beg you to note this language: 'ONE SUPREME COURT and such inferior courts as Congress MAY, FROM TIME TO TIME, ordain and establish.' Not a Supreme Court or Supreme Courts, but 'ONE,' and ONLY ONE. This one Supreme Court Congress cannot abolish, neither can it create another. Upon this the Constitution has no doubtful meaning. There must be one, and but one. Over the years, members of the Court from Justice Stephen J. Field to Chief Justice Charles Evans Hughes to retired Chief Justice Earl Warren made similar arguments. Nothing has changed, then, since the Constitution was written and ratified. It is and always has been understood that Congress's implementation of the one supreme Court language of Article III has not involved and could not involve a reorganization of the Court under which some Justice or Justices conducted the Court's business while others qualified to serve were compelled to watch from the sidelines. But this historical belief in perfect congressional perpetuation of the one [indivisible] supreme Court is mistaken. Early Congresses did not always treat the constitutional commitment to one supreme Court as an absolute bar to all subdivision of the structure and business of the Court. And the Supreme Court itself went along with the legislature in the 1802 creation of the one-Justice rump Supreme Court that sat every year on the first Monday of August until 1839.

Zeilzer, Ed., The American Congress - The Building Of Democracy

The book covers a great deal of material. It divides Congress into four eras. As the reader progresses through each era, one can follow the struggle of early Congresses to find a balance in using their powers. The reader then progresses into a discussion about political parties, the role of parties in Congress, and the struggle of Congress to cope with difficult issues such as slavery and westward expansion.

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.

Ratifying the republic: Antifederalists and Federalists in constitutional time

1. Consensus, Dissensus, and Interpretation: How the Antifederalists and Federalists Have Unwittingly Misled Us 2. It Is Natural to Care for the Crazy Machine: The Antifederalists' Postratification Acquiescence 25 3. Refuge of the Resigned: The Postratification Constitutional Thought of Congressional Antifederalists 47 4. Publius in Constitutional Time: A Partnership in Search of Incompatible Equilibria 74 5. The Unbearable Transience of Federalist #o0 I05 6. Continuity and Change in the Transition to Partisanship, I789-I80o I35 7. The Founding Generation and Political Process: Structural Arrangements in the Early Congress 64 8. The Antifederalists: Ironic Legitimators of the American Regime 193 APPENDIXES A. Ratification Chronology 223 B. Members of the U.S. Congress Who Voted in Ratification Conventions 225

The Ombudsman Program: an overview of the history, purpose, and role of ombudsmen in long-term care facilities.

Long-term care ombudsman programs were established by Congress in the early 1970s to provide a community presence in long-term care facilities. Ombudsmen are advocates who identify, investigate, and resolve individual and systems level complaints that affect residents in nursing homes and assisted living facilities. This article provides an overview of the program and addresses ways in which ombudsmen can work with long-term care physicians and nurses as addressed by the following scenario. An elderly nursing home resident is anxious about the uncaring attitude and impatience shown by one of the nursing assistants providing care. She is afraid to say anything for fear of retaliation, but one day decides to talk to the local ombudsman who is visiting the facility. As an advocate for long-term care residents, the ombudsman assures her that anything she says is in confidence. In listening to more residents, the ombudsman learns that several are afraid of this particular aide, and the ombudsman meets with the charge nurse who assures her that she will follow up with the director of nursing. The in-service coordinator conducts sessions on stress reduction and abuse prevention, and the ombudsman talks to the resident council about resident rights. The ombudsman continues to monitor the situation until it improves. Events like this are happening every day with the help of the Long-Term Care Ombudsman Program, as dedicated people volunteer their time to make a difference in the quality of care and lives of residents in long-term care facilities throughout the country. WHAT IS THE OMBUDSMAN PROGRAM?