The price of public action: constitutional doctrine and the judicial manipulation of legislative enactment costs.

• Author: Stephenson, Matthew C.

ARTICLE CONTENTS INTRODUCTION I. THE THEORY OF ENACTMENT COST MANIPULATION A. The Inevitability of Balancing and the Problem of Uncertainty B. Enactment Costs and the Implementation of the Constitution C. The Theory's Domain 1. Preferences 2. Information 3. The Social Costs of Enactment Costs 4. Implementability II. THE PRACTICE OF ENACTMENT COST MANIPULATION A. Expenditure of Material Resources 1. Constitutional Liability Rules 2. Procedural Safeguards B. Statutory Drafting 1. Narrow Tailoring 2. Interpretive Presumptions and Clear Statement Rules C. Legislative History 1. Rewarding "Good" Legislative History: Analysis and Explanation Requirements 2. Penalizing "Bad" Legislative History: Impermissible Statements of Government Motive D. Doctrinal Uncertainty CONCLUSION INTRODUCTION

In the most famous sentence in all of American constitutional jurisprudence, Chief Justice Marshall declared, "It is emphatically the province and duty of the judicial department to say what the law is." (1) Though susceptible of multiple readings, Justice Marshall's statement succinctly captures a particular view of how constitutional judicial review operates. According to this view, pervasive in much legal scholarship and commentary, some set of government actions is prohibited by "the law"; it is the duty of the courts to identify and to police the boundaries of that set; and anything that falls outside of the judicially defined set of prohibited actions is permissible. (2) This Article contends that the focus on direct judicial assessment and enforcement of constitutional limits obscures important ways in which courts implement constitutional guarantees indirectly. Specifically, I argue that courts often can, do, and should craft doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies, rather than attempting to designate certain government actions, or categories of government actions, as permissible or impermissible. (3)

The advantage of this sort of indirect strategy, as compared with a categorical approach that seeks to classify government actions as lawful or unlawful, is that it may implement a kind of implicit balancing of interests. In that balancing, the damage to constitutional values is weighed against the strength of the government's interest in the challenged policy more effectively than under a direct judicial balancing test. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher.

In a sense, this is a kind of constitutional law analogue to the well-known concept of "efficient breach" in contract law. (4) It would be possible for courts to fashion contract law doctrines--presumptions, balancing tests, and the like--to help them determine which contractual provisions ought to be enforceable under what conditions, and to enforce these determinations through injunctions. The norm in contract law, however, is to compel the breaching party to pay damages. (5) The logic is that the contracting parties usually have better information than the court about the relative economic values of breach and performance, so a liability rule is more likely to prevent inefficient breaches, while allowing efficient breaches. In a similar fashion, constitutional doctrines that raise the costs associated with problematic government enactments may help deter policies that are "inefficient"-in the broad sense of failing a hypothetical ideal constitutional balancing test--while allowing what might be thought of as "efficient breaches" of constitutional rights. (6)

This Article has two main objectives. Part I explains, as a theoretical matter, how, why, and under what conditions judicial doctrines that manipulate enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests at stake. (7) Part II argues that the federal judiciary already has the capacity to fashion doctrines that function in this way; indeed, current doctrine affects legislative enactment costs more than has generally been appreciated. Although manipulation of legislative enactment costs may not be the intended or primary effect of any doctrine in constitutional law, it is an important function of many such doctrines. Furthermore, some doctrines might be justified as means of manipulating legislative enactment costs, even if this was never their intended function.

Understanding both the theory of enactment cost manipulation and the ways in which existing constitutional doctrines may influence legislative enactment costs may be useful in evaluating the advantages and disadvantages of these doctrines, as well as in suggesting alternative doctrinal strategies for implementing the Constitution. By thinking more systematically about these issues, one may be able to craft doctrines that more effectively leverage the advantages associated with an enactment cost strategy while minimizing the inevitable shortcomings of such an approach.

1. THE THEORY OF ENACTMENT COST MANIPULATION

   1. The Inevitability of Balancing and the Problem of Uncertainty

      Constitutional review of government action pervasively, perhaps inevitably, requires some form of balancing. (8) In virtually all hard constitutional cases, some privileged right, interest, or entitlement comes into conflict with a normatively attractive competing government interest. (9) The need to balance constitutional values against competing interests is apparent in the text of some constitutional clauses, such as the Fourth Amendment's prohibition on "unreasonable" searches and seizures and the Fifth and Fourteenth Amendments' requirement of "due" process. Other clauses, such as the First Amendment's Speech and Religion Clauses and the Fourteenth Amendment's Equal Protection Clause, appear to embody more absolute prohibitions. But in practice, when defining the underlying right that is protected "absolutely" and in specifying the remedies available, courts have recognized the need to balance competing values and interests. (10)

      This is not to assert that all constitutional doctrines involve some form of case-by-case, totality-of-the-circumstances balancing, nor that they should. As an empirical matter, pure balancing tests are relatively rare (though certainly not absent) in constitutional law." As a normative matter, scholars of various ideological stripes have argued against the wisdom of doctrines that call for judges to engage in all-things-considered, case-specific balancing. (12) Yet in those areas in which courts reject case-by-case "retail" balancing of constitutional values and competing interests, they typically engage in a kind of "wholesale" balancing when formulating or refining their doctrinal approaches. (13) For example, a judicial decision that a category of government action is presumptively lawful or unlawful, or that certain types of controversy are nonjusticiable, implicitly (and sometimes explicitly) rests on a judgment about how to strike the appropriate balance between some constitutionally protected value and the government's interest in advancing legitimate public policy objectives. (14) Similarly, when courts decide that certain categories of government action will be subject to relatively forgiving "rational basis" review, while other categories will have to meet a more demanding level of scrutiny, these classification decisions typically involve probabilistic judgments about the likely costs and benefits of actions within the specified categories, (15) Thus, rejection of retail balancing in individual cases generally implies wholesale balancing in the creation of doctrinal tests to implement constitutional guarantees.

      To assert that constitutional adjudication and doctrinal formulation require balancing constitutional values against legitimate competing interests is to frame the problem faced by the courts, not to resolve it. How are courts to strike the appropriate balance? How are they to devise doctrinal frameworks that maximize the chances that an appropriate balance will be struck? This problem is especially acute given that courts face two well-known institutional limitations. First, the federal judiciary's lack of direct electoral accountability raises questions about the extent to which courts may make value-laden judgments about the validity and relative importance of alleged constitutional rights and competing government interests. Alexander Bickel famously dubbed this legitimacy problem the "countermajoritarian difficulty," (16) and constitutional theorists have debated it ad nauseum for a half-century since. (17)

      Even if one brackets or rejects the legitimacy objection to judicial review, courts still face a second institutional problem: their comparative disadvantage in gathering and evaluating information about the connection between policies and outcomes. It is not enough to assign normative weight to constitutionally protected values and competing government interests in the abstract. One must also assess the likely consequences of the challenged government action for those values and interests. (18) Yet judges may not be especially good at malting these sorts of empirical or predictive judgments, and that creates problems independent of the normative legitimacy of countermajoritarian judicial review. (19)

      To illustrate the distinction between the legitimacy problem and the information problem, consider a stylized example. Imagine that a speaker in a public park is delivering a racist rant to a large crowd, and the police detain him pursuant...