Legislative record review.

• Author: Buzbee, William W.

INTRODUCTION

In addressing the constitutionality of federal legislation, the United States Supreme Court recently has put great weight on the state of "the legislative record." Particularly in assessing congressional authority to regulate interstate commerce and to enforce the Reconstruction Amendments, the Court has focused on the quantity and the quality of the information compiled by Congress. The Court's review of the factual basis of congressional action has been both intensive and skeptical, leading the Court to strike down six federal statutes in the past six years based at least in part on the inadequacies of the record before Congress. (1)

Board of Trustees of the University of Alabama v. Garrett, (2) decided in February 2001, represents the full emergence of this new intensive and skeptical review of legislative materials, which we refer to as "legislative record review." In Garrett, the Court invalidated provisions of the Americans with Disabilities Act as beyond the power of Congress. The necessary predicate for congressional action, the Court asserted, was a pattern of unconstitutional discrimination by states against the disabled in the context of employment. In finding this prerequisite lacking, the Court faulted the nature and the scope of the evidence before Congress. The Court discounted other potentially supporting information as lying outside of the legislative record and apparently unworthy of judicial consideration. While cases since 1995 had focused on the evidence before Congress, in Garrett the Court for the first time based its ruling solely on the perceived inadequacy of compiled legislative materials. Garrett thus raised legislative record review to new, dispositive significance.

In applying legislative record review, Garrett and its recent antecedents constitute a significant break with Supreme Court jurisprudence stretching back half a century and beyond. The amount of deference a court should afford to legislative judgments has been a key controversy in modern debates about judicial review. As the United States Supreme Court confronted this issue during and after the Lochner period, three principal alternatives emerged. Ranging from least deferential to most deferential, these alternatives were (1) independent judicial review of the factual basis of legislation, (2) deference to evidentiary judgments made by Congress, as reflected in legislative findings or other legislative materials, or (3) deference to "presumed" findings, in the sense of legislative conclusions embodied in the statute, regardless of whether Congress actually had made findings or had received evidence in a written or compiled form. Before Garrett, though, the Court never had used the legislative record as a concept designed to restrain congressional action under the Commerce Clause or Enforcement Clauses. Previously, the Supreme Court had considered whether written materials developed by Congress were sufficient to justify legislative action; the Court had never held that a specific kind of "legislative record" was necessary to validate Congress' exercise of its constitutionally vested powers.

Legislative record review, we will argue, represents a novel mode of judicial review that limits congressional power in crucial respects. This kind of review threatens to impose procedural and substantive constraints on legislative action that have no support in precedent or in constitutional text or structure. Moreover, the Court's reliance on the concept of "the legislative record," in the sense of a comprehensive set of documents reflecting the full scope of congressional deliberations underlying a statute, is fundamentally flawed on the most basic level. This kind of "legislative record" simply does not exist. The entire concept of a legislative record constitutes an inappropriate importation from different institutional settings of the expectation that a written record will justify a legal judgment. Congress acts on the basis of a wide variety of information, concerns, and interests. Informal contacts and latent policy judgments serve as key determinants of legislative conduct. The Court's new legislative record review seeks to reduce the legislative crucible to a written, comprehensive record. Such a process will not be "legislative" as we currently understand that term. In short, "the legislative record" is fundamentally incoherent. To render the concept coherent would require a transformation of legislation.

Reference to administrative law, we will demonstrate, helps to clarify the scope and purpose of the new legislative record review and to illustrate its flaws. In Overton Park, (3) the Court began to speak of reviewing "the administrative record." The imposition of an administrative record requirement reflected suspicion about the administrative process but was at least rooted in roles legislatively assigned to courts and agencies. Record review was designed to promote the rationality of administrative decisionmaking, to guarantee that decisions reflected the special expertise of the agency, and to ensure that illegitimate considerations did not taint the administrative process. Legislative record review bespeaks similar suspicion of the legislative process, but lacks any legislative imprimatur. By its scrutiny of legislative materials, the Court manifests a distrust of congressional invocation of Commerce Clause and Enforcement Clause powers. Indeed, the Court has expressed its skepticism about the relative competence of Congress to define the proper boundary of federal and state authority and to elucidate the meaning of the Constitution. Most fundamentally, legislative record review demonstrates judicial suspicion of congressional motives. As with other forms of heightened scrutiny, legislative record review appears designed to smoke out illegitimate purposes. In these cases, the Court has expressed concern that the real motive of congressional legislation is not to regulate interstate commerce or to enforce the Fourteenth Amendment but to exercise a general police power, including the ability to redefine norms of equal treatment applicable to states. Legislative record review thus resurrects a form of scrutiny of congressional purposes that the Court long ago disavowed as unworkable and unjustifiable. Whatever the legitimacy of judicial distrust of administrative proceedings, we will argue, applying a similar suspicion to the legislative process represents an unjustified and unworkable judicial arrogation of legislative authority. The Court's new legislative record review is not inevitable, but is a normative construct reflecting the Court's vision of federalism and of an enhanced judicial role in checking Congress.

To set the stage for our inquiry, Part I examines the concept of the "record" and explains the fictive nature of "the legislative record," as employed by the Court. By tracing the development of legislative record review to its full eruption in Garrett, Part II demonstrates the novel character of this kind of scrutiny. Scholars and judges have noted a similarity between the Court's recent skeptical review of legislation and its manner of reviewing administrative actions. Part III explores this analogy and contends that while reference to administrative law may be illuminating, far from lending support to legislative record review, the comparison to administrative law emphasizes the illegitimacy and unprecedented rigor of this brand of judicial scrutiny. Drawing on the insights developed in the administrative law context, as well as on analysis of the recent Supreme Court opinions, Part IV argues that legislative record review reflects a pervasive, but largely unacknowledged, suspicion of congressional motives. Such judicial distrust violates norms deeply rooted in the separation of powers and results in a kind of scrutiny that is unpredictable, unnecessary, and illegitimate. This Part further illuminates the theoretical tension between the textualist commitments of certain members of the Court and their embrace of legislative record review. Finally, Part V presents possible responses to the emergence of legislative record review. We propose various means by which Congress and litigants might create and defend legislation so as to survive legislative record review.

1. THE ELUSIVE CONCEPT OF A "RECORD"

   In recent cases, the United States Supreme Court repeatedly has invoked the concept of "the legislative record." The Court employs the term as if it were self-defining. Similarly, commentators refer to the existence of a "formal legislative record." (4) Contrary to the implications of judicial opinions and scholarly commentary, a complete or "formal" legislative record does not exist. Courts and political institutions vary widely in how they receive information about the state of the world, how they compile, record or reflect that information, and, finally, how they take responsive actions. This Part demonstrates that the concept of "the record" has different meanings in different contexts. Some decisionmaking processes generate a relatively complete and formal set of documents that comprehensively details the factors leading to the decision. The legislative process, however, does not. There are reports, hearings, floor statements, all of which could be described as legislative records. The totality of this material does not constitute a comprehensive record of a decisionmaking process, which is how the Court employs the term "the legislative record." "The legislative record," then, is not a description of an existing body of material. It is rather a normative construct, an inference from a hypothetical legislative process that does not correspond to any actual legislature.

   References to a record virtually always arise at the conclusion of a legal process and refer to some kind of compiled collection of materials that reflect a process of review and acceptance of information...