Legislative entrenchment: a reappraisal.

• Author: Posner, Eric A.
• Position: Allowing legislatures o bind their successors

INTRODUCTION

There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." (1) The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds, it is clear that the Court sees the principle as a constitutional axiom. (2) When cashed out in terms of constitutional doctrine, the principle means that legislatures may not enact entrenching statutes or entrenching rules: statutes or rules that bind the exercise of legislative power, by a subsequent legislature, over the subject matter of the entrenching provision. Judges have applied this rule of constitutional law in various settings, (3) and the academic literature takes the rule as given, universally assuming that legislative entrenchment is constitutionally or normatively objectionable. (4) The goal of the academic literature has been to supply the definitive rationale for the rule, although the theorists' favorite rationales are all different. (5)

Our claim is that the rule barring legislative entrenchment should be discarded; legislatures should be allowed to bind their successors, subject to any independent constitutional limits in force. The rule has no deep justification in constitutional text and structure, political norms of representation and deliberation, efficiency, or any other source. There just is no rationale to be found; the academics have been on a fruitless quest. Entrenchment is no more objectionable in terms of constitutional, political, or economic theory than are sunset clauses, conditional legislation and delegation, the creation, modification, and abolition of administrative agencies, or any of the myriad of other policy instruments that legislatures use to shape the legal and institutional environment of future legislation.

In Part I, we define our terms, rebut the view that entrenchment is conceptually impossible, and argue that entrenchment is both constitutionally permissible and, in appropriate circumstances, normatively attractive. In Part II, we apply our analysis to a wide range of entrenchment-related problems, including the validity of the Senate cloture rules, the Gramm-Rudman law, legislatively enacted canons of statutory interpretation, statutes that regulate internal congressional procedures, government contracts, treaties, and entrenchment within the executive and judicial branches. Part III is a brief conclusion.

1. THEORY

   1. Definitions

      "Entrenchment" is a promiscuous word in the academic literature. We have to ask: entrenchment of what, as against whom, by what means? We ignore one use of the term, favored by process theorists such as Klarman, (6) to mean entrenchment of officials against challengers, such as prospective candidates, by means of rigged electoral rules, restrictions on political speech, and so forth. By "entrenchment," then, we mean the enactment of either statutes or internal legislative rules that are binding against subsequent legislative action in the same form. As we will see, there may be constitutional arguments for distinguishing statutes from rules in particular contexts, but there is no entrenchment-related reason for doing so. Accordingly, we will refer to "entrenching statutes" except when we discuss the collateral constitutional distinctions between statutes and rules.

      On our definition, an ordinary law has some propositional content P--no bicycles in the park, for example. An entrenching statute has this propositional content plus an additional provision R which governs the conditions under which the statute may be repealed or amended. For example, R might say that P cannot be repealed or amended with less than a two-thirds majority in both the House and the Senate. Thus, an entrenching statute might say: (P) no bicycles in the park; and (R) the prohibition on bicycles in the park cannot be repealed with less than a two-thirds majority.

      In this example, the entrenchment is accomplished by prescribing voting rules that the subsequent legislature must use, but it is important to be clear that this is a contingent feature of the example. Commentators sometimes assume that legislative prescription of voting rules is coterminous with legislative entrenchment, but that is not so. The legislative prescription of voting rules may be objectionable on constitutional grounds unrelated to entrenchment--if, for example, the Constitution happens to mandate majority voting and the earlier legislature requires the later legislature to act by a two-thirds majority. Conversely, the earlier legislature may entrench not a supermajority voting rule, but a substantive policy. For real-world examples, consider the federal statute at issue in Reichelderfer v. Quinn, which "perpetually dedicated" certain public lands in the capital for use as Rock Creek Park, (7) or the Ohio statute at issue in Newton v. Commissioners, which "permanently established" the town of Canfield as the seat of Mahoning County. (8) In the first case, the Court discussed the entrenchment issue but avoided it by aggressive statutory interpretation, (9) and in the second, the Court reached the constitutional merits and found the entrenchment invalid; (10) in neither case was the entrenchment accomplished by prescribing voting rules. A hypothetical analogue might be an addendum to the Endangered Species Act (11) providing that "this statute (including this provision) may never be repealed (even by a unanimous vote)."

      The rule against legislative entrenchment has a corollary, or a reformulation, that is usually called the "last-in-time rule" for statutes. (12) The last-in-time rule addresses an intertemporal choice-of-law problem: It says that if a statute enacted at Time 1 squarely contradicts a statute enacted by the same legislature at Time 2, after reconciliation through statutory interpretation has proved impossible, the later-enacted statute is the law. The qualifier about interpretation emphasizes that the last-in-time rule, like the equivalent anti-entrenchment rule, is a rule of constitutional law rather than an interpretive canon. In the regime that we argue for, by contrast, discarding the anti-entrenchment rule entails simply that the earlier legislature itself decides the intertemporal choice-of-law question: Whether the later-enacted statute governs in the case of a conflict depends on what the earlier legislature has provided. As subsequently discussed, however, our position is quite compatible with an interpretive presumption against legislative entrenchment in the form of a default rule holding that the later-enacted statute governs if the earlier-enacted statute is silent on the entrenchment question.

   2. Is Entrenchment Possible?

      Entrenching statutes pose two puzzles, one conceptual and the other normative. The conceptual puzzle is whether entrenching statutes are possible. If they are not, the normative puzzle does not need to be addressed, so we start with the conceptual puzzle.

      Consider statute PR, in which P prohibits bicycles in the park, and R prohibits repeal with less than a two-thirds majority. The conceptual challenge to this statute is the claim that even if judges enforced statutes in a literal way and enforced earlier statutes as fully as later statutes, PR would not bind a simple majority of a subsequent Congress. If the majority believes that a statute PP that permitted bicycles in the park would violate PR, that majority could first repeal the statute PR, enabling itself to repeal P (that is, enact PP) without a supermajority. Indeed, one might expect that any statute PP that is squarely inconsistent with PR would work an implied repeal of R, in which case PR would not in any way bind a future Congress.

      The original Congress could pass an additional entrenching provision, R', which provides that R can be repealed only with a two-thirds majority, but then of course the next Congress could repeal R' with a simple majority, and so on down the line. But ordinary language can handle the infinite regress. Let the original Congress enact [R.sup.*], which says that a two-thirds majority is necessary to repeal or amend both P and [R.sup.*]. The statute P[R.sup.*] is invulnerable to repeal. Self-reference solves the problem of infinite regress. (13)

      A more serious challenge to entrenchment is the possibility of circumventing statutes without referring to them explicitly. (14) Consider the following alternatives to PP: (1) Bicycles are two-wheeled vehicles manufactured before 1900; two-wheeled vehicles manufactured after 1900 are shmicycles (not governed by P); (2) police officers who give tickets to bicycle riders in the park will be fined $1000; or, more simply, park police officers are hereby ordered to focus their efforts on littering and to ignore bicyclists; (3) people who are ticketed and fined for riding bicycles in the park are entitled to a ten percent reduction in their property tax; or (4) we hereby announce that the Jane Doe Park has been closed and reopened as the John Smith Recreational Area (P refers to parks, not recreational areas). Each of these statutes achieves or nearly achieves the effect of PP without expressly contradicting PR.

      Examples could be multiplied, but we do not find them as troublesome as other authors do. Legal actors constantly must make judgments about whether a statute conflicts with a previous or hierarchically superior enactment. When an interpreter such as a court or legislative body decides whether a federal law preempts a state law, whether a federal or state law conflicts with the Constitution, or whether a transaction violates the tax law, it must be able to identify real conflicts that are concealed by statutory (or transactional) indirection. This task involves a well-known problem of interpretive theory, variously labeled as a "form and substance" problem, a "rules and standards" problem, a problem of the choice...