statutory entrenchment

Tue Dec 22 08:02:20 PST 2009

On the Chadha point -- I don't have the case in front of me, but IIRC, Chadha *defines* a legislative act requiring bicameralism and presentation as one that affects individuals (including there the Attorney General) "outside the legislative branch" (or some such language).  I wouldn't make too much of this -- the contexts are different -- but this suggests that statutory "internal rules" might not be subject to the same requirements for repeal as Chadha-defined legislative acts.  

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Bruhl, Aaron 
Sent: Tue 12/22/2009 10:42 AM
To: conlawprof at lists.ucla.edu
Subject: RE: statutory entrenchment

Here are some thoughts in response to what Seth Tillman is calling the
antecedent question of whether the statute setting forth internal
procedures would be presumptively valid to begin with (as opposed to
what the procedure would be for overcoming it once it is regarded as a
valid rule):

Although internal matters are ordinarily governed by unicameral
resolutions, there is a long history of setting forth such matters in
statutes.  There are at least scores of such statutes, and they arguably
date back to  the very first statute in the Statutes at Large (June 1,
1789), which concerned (among other things) the order of business at the
start of a session.  So there is at least a pedigree.

I would say that a "statutized" rule is at least presumptively binding.
It was, after all, passed by the legislative body.  Note that Senate
rules do not require a supermajority vote to be amended - that is done
by majority; it is stopping a filibuster on an attempt to change the
rules that requires a supermajority.  But if the matter is voted on, a
majority is sufficient.

Now, as Seth rightly observes, one of the really tricky points is
whether the statute trumps rules or vice versa.  I would say the
prevailing view (to the extent there is one - this isn't something many
people have thought about!) is that it is a last-in-time rule.  Now,
this seems really odd in some ways.  How can a "mere" internal rule
trump the U.S. Code?  What about Chadha's language about how the repeal
of laws, just like enactment, requires the finely wrought bicameral
procedure? Without claiming this is a fully satisfactory answer, I
suppose I'd say that the statute, while presumptively valid, cannot
purport to be valid as anything more than an internal rule that can be
abrogated in the usual internal ways.  That result would be required by
either anti-entrenchment norms or, more importantly, separation of
powers considerations (one  chamber shouldn't be beholden to the other
chamber  and the president when it comes to changing its rules, as would
happen if only a statute could change the statutized rule).  Maybe the
foregoing is misguided, but it seems persuasive to me.  For what it's
worth, Congress usually includes language in the law saying that the law
is enacted as part of its rulemaking power and can be changed as any
other rule.  I don't know if they've done so here, but I don't know that
the language is needed anyway.  

For those who are interested, I have addressed some of these matters at
length elsewhere.  See
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=920878  and
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=920871 

Aaron-Andrew P. Bruhl

Assistant Professor, University of Houston Law Center

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of seth tillman
Sent: Tuesday, December 22, 2009 8:36 AM
To: conlawprof at lists.ucla.edu
Subject: re: statutory entrenchment

I appreciate Mark and Chris's post. But their answers, if I understand
them, seem to go to choreography (venue and jurisdiction) and have the
flavor of legal positivism. Their answers go to the procedures, provided
for by the contested statute, that will be used to decide a point of
order.

My question was intended as more substantive or normative. Let me make a
second effort at posing my question(s). 

Should a presiding officer consider his chamber and his decision on a
point order in some sense bound or determined by a statute that purports
to govern intracameral proceedings, which are usually the subject of
single-house intracameral rule-making, not statutes? 

Can a statute effectively amend the Senate rules -- which are
purportedly subject to an internal Senate supermajority rule? Can a
statute amend the Senate rules even if passed by less than the relevant
Senate supermajority? 

Can a statute bind a future House -- which customarily repasses its
rules anew at the start of each new session? 

Chris and Mark seem to be suggesting (I am not 100% sure) that the
statute has force, although it can be effectively overturned by a
majority when reviewing a decision of the chair. But it would seem to me
you only reach that question if you think the statute is presumptively
legal or valid or operative or constitutional and should be enforced by
the chair in the first instance. Is that the consensus? And if so, why?
If a statute can function as a rule, wouldn't such a statute trump any
rule (passed before or, even, after the statute) -- Supreme Law of the
Land and all that? And if that result is counter-intuitive, might not
that mean that a statute cannot function as a rule? 

Seth

Seth Barrett Tillman

http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345891

http://works.bepress.com/seth_barrett_tillman/

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