Michael C. Dorf

What Weight Should Congressional Precedents Have in Constitutional Interpretation? Lessons of the "Slaughter Rule" Debate

By MICHAEL C. DORF
Wednesday, March 24, 2010

In the last week's final frenzy of activity leading up to the passage of health care reform, Republican critics and others objected to a procedure that Democrats in the House of Representatives were considering deploying.  Republicans dubbed the procedure the "Slaughter rule"–after the House Rules Committee Chair, Representative Louise Slaughter. Pursuant to the Slaughter rule, the House would not take an up-or-down vote on the Senate bill, followed by an up-or-down vote on the reconciliation bill amending it. Instead, the House would first enact a "self-executing rule" that included a provision deeming the Senate bill to be passed upon the subsequent House passage of the reconciliation bill.  Thus, when the House passed the reconciliation bill, under the terms of the self-executing rule, it would be passing the original Senate bill as well.

The political benefits of this rather tortuous procedure were not at all clear. Apparently, some Democrats who opposed the Senate bill as insufficiently far-reaching thought that by voting for the self-executing rule–rather than voting directly for the Senate bill–they could plausibly claim thereafter never to have "really" voted for the Senate bill. However, given the obvious purpose and effect of the self-executing rule, it is hard to imagine that anyone would have been fooled.

Meanwhile, from the right, critics charged that passage of health care reform via a self-executing rule would violate what the Supreme Court in the 1983 case of INS v. Chadha called the Constitution's "single, finely wrought and exhaustively considered, procedure" for lawmaking. As set forth in Article I, Section 7 of the Constitution, that procedure requires each chamber of Congress to pass the same bill. However, the critics said, whereas the Senate action was accomplished in two separate votes (on the original bill and on the reconciliation measure), the House would get a "twofer" in its reconciliation vote if the Slaughter rule were invoked.  Accordingly, it was suggested that the bill that would be presented to the President would not become law upon his signing it.

For reasons explained in a letter from me and UC Berkeley Law Professor Daniel Farber to Congresswoman Louise Slaughter, chair of the House Rules Committee, I believe that the critics were wrong.  Moreover, as the letter further explains, there would have been substantial procedural obstacles to the courts even considering a challenge to the legislation.  Readers interested in the merits of that substantive constitutional argument can find it on my blog, where I have reproduced the letter to Representative Slaughter.

With the debate over the self-executing rule moot for now, in this column I shall address a more general methodological question raised by that debate: What weight should longstanding congressional practice be given in constitutional interpretation?

In defending their consideration of a self-executing rule to enact health care reform, House Democrats pointed out that the procedure was first used in the 1930s and that it had been used numerous times since then, by Republicans and Democrats alike.  As a political talking point, this was rhetorically effective: It suggested Republican critics of the self-executing rule were hypocrites who were only interested in defeating health care reform by raising an insincere procedural objection.

But putting politics aside, what is the legal significance of the longstanding congressional acceptance of a practice?  Were the House Democrats right that the tradition of congressional use of self-executing rules should count as a reason for holding such rules to be constitutional?  And, more broadly, does longstanding practice inform constitutional meaning, or merely test it?

Longstanding Practice as Evidence of Original Understanding

If a congressional practice is sufficiently old, it can provide useful information about the original understanding of the Constitution.  Consider the Judiciary Act of 1789, passed as the first order of business by the first Congress under the new Constitution.  Although the organization and jurisdiction of the federal courts has been changed substantially since 1789, many of the key features of the original Act remain in place.

Moreover, when a litigant or commentator claims that some jurisdictional or other procedural rule governing the federal courts violates the Constitution, those favoring the rule may point to the fact that the relevant feature was part of the 1789 Act. Given the substantial overlap between the membership of the 1789 Congress and the membership of the 1787 Constitutional Convention–with both groups including James Madison, the Constitution's chief architect, and Oliver Ellsworth, the draftsman of the 1789 Act–it is a pretty good bet that any feature of the 1789 Act is consistent with the Constitutional's original understanding. Accordingly, the Supreme Court has often looked to the 1789 Act to discern the original meaning of the Constitution's Article III.

The Supreme Court has taken early congressional practice to be informative as to the original understanding in other contexts as well. For example, in the 1983 case of Marsh v. Chambers, the Justices rejected a claim that the Nebraska legislature's practice of opening its sessions with a prayer delivered by a publicly-paid chaplain violated the First Amendment's Establishment Clause. The majority opinion placed critical reliance on the fact that "the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer." Surely, the Court implied, the Congress that paid legislative chaplains in April 1789 did not think it was acting in violation of the very First Amendment it would propose to the states just six months later.

Nonetheless, the Supreme Court does not treat early Congressional practice as necessarily controlling on matters of constitutional interpretation. For example, the most celebrated constitutional case in American history, Marbury v. Madison, held that a provision of the 1789 Judiciary Act was unconstitutional because it authorized jurisdiction beyond the limits of Article III. Chief Justice John Marshall's opinion barely paused to credit the Act's authors with deep familiarity with the meaning of the Constitution.

Likewise, with the exception of a few decisions like Marsh v. Chambers, modern First Amendment doctrine is fundamentally at odds with Eighteenth Century practices. The starkest example is the 1798 Sedition Act, a law passed less than a decade after the Constitution's ratification, yet understood today as a paradigmatic violation of the right to freedom of speech.

Perhaps most tellingly, the Court has rejected the contemporaneous legislative practice of the framers as a basis for its interpretation of the Equal Protection Clause of the Fourteenth Amendment. In Brown v. Board of Education and its companion case Bolling v. Sharpe, which involved racially segregated schools in the District of Columbia, the point was made that the very Congress that proposed the Fourteenth Amendment also established racially-segregated schools in the District. Thus, defenders of Jim Crow argued that the original meaning of the relevant constitutional language had to be consistent with de jure segregation.

Once again, the Court barely mentioned the evidence of contemporaneous practice. Although that evidence "cast some light," the unanimous ruling pronounced, "it is not enough to resolve the problem" of racial segregation. In short, because original understanding is only one factor in judicial interpretation of the Constitution, it can be overlooked or overwhelmed by other factors. At most, the fact that a longstanding congressional practice provides evidence of the original understanding raises a weak presumption in favor of the constitutionality of that practice.

Longstanding Congressional Practice and the "Butterfly Effect"

Nonetheless, longstanding congressional practice has relevance for constitutional interpretation beyond what it tells us about the original understanding. Adapting the views of Edmund Burke, we might think that any longstanding practice ought to be deemed presumptively constitutional because it reflects the accumulated wisdom of experience. Although it is reverential of the past, this view is, in an important respect, the opposite of the originalist perspective: Whereas originalists say that the writers of a constitution know best what it means, the Burkean says that only by living under a law or constitution do we ascertain its true, best meaning.

Alexander Hamilton expressed what I am calling the Burkean perspective in Federalist 82. "'T'is time only," said Hamilton writing as Publius, "that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE."

The Burkean/Hamiltonian perspective has proven prescient in a variety of ways, but none so dramatically as with respect to the framers' failure to anticipate the rise of political parties. That development, within a decade of the Constitution's ratification, transformed our national institutions. Without an understanding of the interplay between the two major parties, one can scarcely make sense of the doings of Congress; yet the pre-enactment sources–including the Federalist Papers themselves–provide us with almost no guidance about such matters.

Although he wrote well before the advent of modern chaos theory, Burke's insights rely on something akin to it: Government, like the weather, is a highly complex and thus unpredictable phenomenon. Just as the beating of a butterfly's wings can ultimately cause a hurricane halfway around the world, so the relatively minor disruption of some human institution–even one as seemingly technical as a judicial ruling that self-executing rules violate Article I, Section 7–could have dramatic and unforeseen consequences.

One need not look past the health care debate for examples of the unanticipated consequences of procedural changes. It used to take a two-thirds vote in the Senate to break a filibuster, but that number was reduced to 60 out of 100 in the 1970s as part of an effort to reduce the ability of a Senate minority to block legislation. However, because the reduction was accompanied by a further procedural change–allowing 41 Senators to block a vote without bringing all Senate business to a halt–the actual effect was the opposite: In lowering the cost of filibustering, the Senate made the practice more, rather than less, common. Arguably, the Senate had been insufficiently Burkean in changing its cloture rule.

Burkeanism seems an especially appropriate attitude for judges, for it urges caution. The Burkean judge is wary of too readily declaring some longstanding congressional or other practice invalid, for other practices may well rest on it.

Nonetheless, Burkeanism itself is only presumptive. To revisit an example, in the Brown case, Southern states and boards of education made fundamentally Burkean arguments: Invalidation of segregated education, they said, would disrupt an entire way of life, perhaps even ushering in a second civil war. The Justices were not persuaded. Though fearful that their mandate might be defied (as it was in many places for many years), the Court nonetheless thought the constitutional result too clear and the stakes too high for Burkean caution to prevail.

Likewise in INS v. Chadha, the Court invalidated the legislative veto over the objection that in doing so it was wiping out over two hundred statutory provisions adopted over the course of decades. Writing in dissent, Justice Byron White thought that the majority's action was simply reckless. Yet for the majority, the dictates of Article I, Section 7 were simply too obvious for White's Burkean objection to count for much.

In sum, whether it is invoked to establish the original understanding or to counsel Burkean caution, longstanding congressional practice only raises a presumption of constitutionality, rather than definitively resolving any constitutional issue.

The Bottom Line

So, who was right in the health-care reform debate? The answer depends on the breadth of the question.

Although the Republican opponents of health-care reform and their allies in the tea party movement tend in their rhetoric to equate the Constitution with (their version of) the original understanding, they might have done better to make a straightforward Burkean claim: Our existing health-care system is an extremely complicated machine with inter-connecting parts; thus, the Democratic effort to overhaul it will almost certainly have unforeseen consequences, many of them undesirable.

On the other side of the debate, the Democrats can give the standard anti-Burkean rejoinder: The complexity of our health-care system reflects the path-dependence of a Rube Goldberg machine that has been developed by accident, rather than the accumulated wisdom of the ages. Thus, changing it can hardly make things worse.

With respect to the self-executing rule, the parties' positions were flipped. As to that question, the Democrats were arguing that the longstanding use of self-executing rules shows that they are a perfectly acceptable part of the legislative process. Conversely, the Republicans were contending that, like the legislative veto invalidated in Chadha, the self-executing rule was a blatant departure from Article I, Section 7.

Because the Democrats passed health-care reform without resort to the self-executing rule, judicial resolution of the constitutionality of that procedure has been forestalled, perhaps indefinitely.

As to the substance of the bill Congress passed, as this column goes to press, Republicans are threatening to challenge its constitutionality in court. For reasons I set forth in two columns last fall (here and here), I believe that challenge should fail. But that does not mean that there will be no verdict on whether it was better to leave our system of health care as it was, or to adopt the changes in the new law. That question will be resolved in the court of public opinion, where it properly belongs.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at dorfonlaw.org.

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