Legislative Record Review

Abstract

In reviewing the constitutionality of federal legislation, the United States Supreme Court recently has scrutinized the underlying "legislative record." Since 1995, the United States Supreme Court has invalidated six federal statutes based at least in part on its scrutiny of the underlying legislative materials. Board of Trustees of the University of Alabama v. Garrett represented the full emergence of this rigorous judicial scrutiny, which we term "legislative record review." In Garrett, the Court broke with seventy years of precedent by striking down legislation based solely on the inadequacy of the record developed by Congress. Before Garrett, some commentators had noted and even endorsed the Court's new approach to judicial review of legislation. These scholars, however, had failed to explore the flaw at the center of legislative record review. As we demonstrate, the very concept of "the legislative record," as employed by the Court, is a fiction. The nature of the legislative process belies the existence of comprehensive explanatory materials. The notion of a legislative record, as used by the Court, constitutes an inappropriate importation from different institutional settings of the expectation that a written record will justify a legal judgment.

With reference to the insights of administrative law and its agency record review jurisprudence, we argue that reliance on the concept of a legislative record is unworkable and illegitimate. In defiance of separation of powers principles, legislative record review actually embodies more rigorous judicial scrutiny than commonly employed even in "hard look" review of administrative action. The Court's new parsing of legislative statements and submissions is also in substantial tension with typical textualist rejection of recourse to legislative history. Having identified the flaws at the heart of legislative record review, the Article then traces its origins to judicial suspicion of congressional motives. The adoption of this mode of review reveals a newly ascendant judicial distrust of Congress. While courts certainly have a role in reviewing the basis of congressional action, we argue that this kind of review of ostensible factual predicates constitutes an unnecessary and ill-defined intrusion into the constitutionally conferred powers of Congress. In conclusion, we propose various means by which Congress and litigants might create and defend legislation so as to survive the rigors of legislative record review.