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Legislation
University of California, Hastings School of Law
Leib, Ethan J.

Legislation

Griggs v. Duke Power Company, US Ct. App. 4th Cir., 1970
+Judge Boreman
Title VII – appropriateness of certain qualifications tests
– interprets using agency interpretations (great weight, Udall v. Tallman, but not determinative), legislative history overrules agency
+ Judge Sobeloff dissenting
– agency interpretation, but finds that not in conflict with leg. history

I. Descriptive and Normative Theories of Legislation
A. Pluralism and Interest Group Theories
1. Pluralism – The importance of groups in legislation
2. Public Choice Theory – A transactional view of the legislative process
a. Demand Patterns in Political Markets (distributed/concentrated, costs/benefits)
b. Supply Patterns in Political Markets (distributed/concentrated, costs/benefits)
c. The implications of a Transactional Model of Legislation: Madison’s Nightmare
3. Criticisms of the Pluralist or Public Choice Vision
B. Proceduralist Theories of Legislation
1. Vetogates: Procedural Doors that Bills must pass through
2. Liberal Theory – Statutes should be Hard to Enact
3. Republican Theory: The Deliberative Value of Process
C. Institutional Theories of Legislation
1. Introduction to the Institutional Perspective – anticipated response, structure of the institution
2. The Article I, § 7 Game (bicameralism and presentment), sequence of bill passage
3. The Statutory Implementation Game – Agency/Court implementation

United Steel Workers of America v. Weber, USSC, 1979
+Justice Brennan
Affirmative action plan for filling training spots, white guy sued after being left out
– Uses legislative history (citing Holy Trinity Church), house reports, leg. record, “spirit of the act” (purposivism)
+Justice Blackmun concurring
– some misgivings about legislative history, uses a pragmatic appeal to problems of statutory justice and workability (Courts/Agency must fill in gaps/ambiguities in the statute – dynamic statutory interp., in the face
of the later cases and developments in society, etc)
+Justice Rehnquist dissenting (w/Chief Justice, who?)
– plain language is clear, also uses leg. history but for his side (leg. record, process by which it came about)
+Stevens and Powell did not vote
+Notes: Generally House and Senate Committee reports are the best source for Leg. History
+Weber is also decided in light of Griggs, rather than just the Act itself

Johnson v. Transportation Agency, Santa Clara, USSC, 1987
+Justice Brennan, Powell
– in light of Weber, Congressional inaction (support of Weber? At least not outright rejection, Congress has responded to decisions it really didn’t like and didn’t respond to Weber)
+Justice Stevens, concurring
– must consider Bakke and Weber, public interest in stability and orderly development of the law,
+Justice O’Connor, concurring in judgment
– Constitutional basis and different interpretation of Weber
+Justice White, dissenting
– Joined in Weber, but would now overrule it, the reinterpretation is a perversion of Title VII
+Justice Scalia, dissenting, Justice Rehnquist joins, Justice White joins in parts 1 and 2
– goes back to plain language, 1 & 2 deal with facts and say that it is contrary to past decisions
– 3 says Weber dealt with private employers, but this is a public employer
– Weber rewrote the statute according to its “spirit,” rather than its words
– Can’t assume lack of Congressional response = assent, given complexity of Congressional action
– Overrule Weber, Civil Rights cases have weaker stare decisis
+Congressional Acquiescence – valid?

Flood v. Kuhn, USSC, 1972 (Stare Decisis and Statutory Precedents)
+Justice Blackmun
– is baseball subject to antitrust legislation?
– Federal Baseball, 1922, held baseball exempt from antitrust, followed continuously, despite the changes in baseball from simple exhibitions to a national league (Toolson, Kowalski, Corbett)
– Congress was aware of the “exemption” decisions and did not act, Baseball was allowed to develop relying on the exemption for protection, reluctance to open up retroactive effects?, court looks to Congress to change this
– Later cases limited the exemption to baseball
+Justice White joins in all but Blackmun’s baseball masturbation
+Justice Powell took no part in consideration or decision
+Justice Burger, concurring (stupid stare decisis, but Congress should fix it)
+Justice Douglas, Brennan, dissenting
– Congressional silence shouldn’t prevent overruling a decision that is now completely wrong
+Justice Marshall, Brennan
– interpretations of federal statutes have strong stare decisis, but Congressional inaction shouldn’t prevent overruling this now inaccurate decision
+Super-strong stare decisis for decisions interpreting statutes (regular for common law, weak for constitutional since it is so hard to fix legislatively)
+Congress probably wasn’t going to act, so “punting” to Congress was meaningless?
+State courts are often even more dedicated to this super-strong stare decisis for statutes

II. Representational Structures
– Is the Representative to be Descriptive (microcosm of the collective – representation of minority groups), an Agent of the people (do what the people want, explicitly or implicitly – pluralist theories of democracy), or a Trustee (exercise your own judgment – republican theories of government, deliberation for the common good)
A. Electoral Structures and Equality Values
1. Use of committees
2. Bicameralism everywhere except Nebraska
3. Local – mayor-council equality, mayor-council strong mayor, commission (elected commissioners)
4. Right to vote includes: Participation, a fair rule of aggregation (representatives should represent roughly
equal numbers – raises questions of gerrymandering (cracking a big group and dispersing it into other
districts; packing big groups from multiple districts into one district to limit their impact – ghettoizing
them; and stacking a big group with an even bigger group to drown them out) and vote dilution
B. One Person, One Vote: Formal Equality in Representation –
1. Baker in 1962, Brennan, okay for Courts to decide questions on voting district construction/allocation
2. House of Representatives
– Wesberry: struck down a GA scheme where some districts had twice as many ppl as others, court said
that districts should be equal as nearly as is practicable (one person, one vote)
– Karcher: absolute population equality (deviation of 0.7% was too high)
– Problem of allocating the 435 seats among 50 states, creates unequal district sizes between states, court
said this was okay between states, but not within states, Montana
– Problem of inaccurate counting, missing people – Wisconsin, Secretary of Commerce does not have to
revise with statistical methods to account for these problems; Department of Commerce, Clinton tried
to change to use statistics, but Court said Dept. couldn’t, no authorization from Congress, maybe
unconstitutional
3. State Legislatures
– Reynolds – apportionment in state legislatures is also held to one person, one vote – applies to both
state houses, no Senate exception as there is nationally (Senate is a result of a historical, Const. deal)
– Deviations can be higher, under 10% has been routinely upheld, and higher deviations may be upheld

Senate
– Creates unequal political blocs, completely anti-democratic in power and influence
– Leads to income redistribution to small states, hurts racial minorities (who tend to be subsumed in larger states), protects diversity among the states by harming efforts to homogenize the nation
– Small state senators can concentrate on specific issues for their population, skewing results and creating craziness like our Agricultural policy, subsidies, specific industry
– Small state residents have more voting power and easier access to their representatives
– Small state politicians are more likely to become party leaders (less time is spent raising money, politicking)
– Small state senators are better positioned to demand pork/windfalls – Homeland security, for example
– DC citizens have no vote in Congress, not represented at all
– Consequences – confirmation of SC Justices
– Small states are less urban, more white, not representative
– Redistribution is unfair – larger states are as, if not more, poor
– America is radically different from the situation that led to the Senate’s formulation
4. The Special Problem of Divided Government – How Separate do we Want Our Institutions to Be?
– political parties blur separation of powers – blurs bicameralism and legislative/executive splits
– frequent elections of House prevents consensus and experience
– separate institutions / factions take different policy positions, public pronouncements
– Capture of Legislative and Executive by one party kills Legislative oversight of Executive
– Legislators can’t serve in the Cabinet – reduces the talent pool available to President, could make smoother interaction with Congress, Reps with better experience in the area of government
5. The Constitution as Inadvertent Promoter of Discontinuity in Government (and Presidential Dictatorship)
– Senators can be appointed by Governors if necessary (death or something)
– What is “Quorum” necessary to do business? Majority of living members? – no way of filling vacancies in the House except by election! What if you can’t have an election immediately?
– Presidential incapacity can be remedied by VP and executive declaration
6. The Questionable Legitimacy of Lame-Duck Congresses
– Between election and taking office, an Old Congress is still in session – if they are no longer “elected,” why let them pass bills or take any political action?
– GATT, for example, was passed in 1994 by a lame-duck Congress

Article I Fun
– Legislative Veto of agency rules/actions/adjudications, meant to provide a quick response and avoid the full legislative procedure. Has been vested in joint action, one house, or a legislative committee. Avoids presidential presentment. Typically, these are negative veto clauses (action will be valid unless the veto-holder objects), but they can be positive (all agency decisions must be signed off on by the veto-holder).
– States have their own setups