Legislation
Article
Expounding the Constitution
This Article reinterprets Founding-era debates about constitutional interpretation as arguments over its nature. If analogous to public legislation, it would be read pragmatically; if more like private legislation, it would be construed narrowly. This insight provides vital context for contemporary …
Forum
Reading the ACA’s Findings: Textualism, Severability and the ACA’s Return to the Court
Challengers are using false textualism to implode the ACA. They argue that a findings section is an “inseverability clause,” ignoring the text and location; the language is boilerplate not for severability but for the commerce power; and Congress’s actual inseverability clauses are unmistakably expl…
Article
Law Within Congress
What law governs Congress? This Article explores the importance of parliamentary precedent as a body of law and the House and Senate parliamentarians who make and enforce that law. Understanding this legal system sheds light on how Congress operates and on topics in public law more broadly.
Article
Regulatory Bundling
Administrative agencies can aggregate or disaggregate provisions during a single legislative rulemaking. Such regulatory bundling has been especially prevalent over the last two decades, with agencies including increasingly more subjects in their final rules. This Article explores this phenomenon, t…
Forum
The Effort to Reform the Federal Criminal Justice System
This Essay describes the difficult process of federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future reforms and discusses the criteria advocates should use in deciding whether to support future refo…
Note
Spending Money To Make Money: CBO Scoring of Secondary Effects
This Note discusses how the budget scorekeeping guidelines prevent the Congressional Budget Office from considering savings from program integrity and enforcement when it scores proposed legislation. The Note argues that that limitation leads Congress to irrationally underfund those activities and p…
Forum
The Trump Administration and the Breakdown of Intra-Executive Legal Process
In the first year of the Trump Administration, a breakdown of intra-executive internal norms and legal processes has led to a remarkable series of losses in the courts. This Essay argues that such a breakdown can substantially damage both the viability of an administration’s policy agenda and public…