An Authoritative Statement of Administration Action: A Useful Political Invention or a Violation of the Separation of Powers Doctrine?

43 Pages Posted: 22 Jan 2009

See all articles by Cindy Galway Buys

Cindy Galway Buys

Southern Illinois University School of Law

Date Written: October 3, 2003

Abstract

Many scholars have argued the merits of Congress creating statutory regimes that stipulate how a court should interpret statutes. Despite the voluminous legal scholarship relating to such regimes, there is a dearth of concrete examples. This article presents a concrete example found in the Uruguay Round Agreements Act (URAA), the federal statute that implemented the World Trade Organization (WTO) Agreements into U.S. law. The article argues that this statutory regime clearly violates the constitutional separation of powers doctrine.

The article begins with an explanation of how the URAA was created through fast track procedures. These fast track procedures required that at the Executive branch present Congress with a Statement of Administrative Action (SAA) which explained in detail how the Executive planned to implement the URAA once enacted. At the time of the URAA's enactment, Congress "approved" the SAA in the statute. In addition and most importantly, Congress took the extraordinary step of providing in the text of the URAA that the SAA should be regarded by U.S. courts as an authoritative expression by the United States of the interpretation and application of the URAA in any question arising under the law. In essence, Congress attempted to make the SAA controlling super-legislative history.

After describing the evolution of jurisprudence relating to separation of powers doctrine, the article analyzes the statutory regime of the URAA and SAA and finds that it clearly violates the Constitution. The principle reason for finding this regime unconstitutional is because the regime represents Congress's attempt to create a two-tier law, or a law that Congress creates using both the text of the statute as well as some extrinsic source or procedure that does not comply with bicameralism and presentment. The article then describes the very rare instances in which the courts have examined two-tier laws and why the courts have never resolved their constitutionality. Finally, the article explores whether, after ignoring the unconstitutional mandate from Congress to treat the SAA as super-legislative history, the courts should consider the SAA a useful kind of legislative history.

The article concludes that although a statement of administrative action prepared by the Executive and approved by Congress may appeal to a court as potentially useful legislative history, there are serious questions as to the reliability of such a document which should cause a court to use caution in relying on such a document in statutory interpretation.

Keywords: separation of powers, judicial review

Suggested Citation

Buys, Cindy Galway, An Authoritative Statement of Administration Action: A Useful Political Invention or a Violation of the Separation of Powers Doctrine? (October 3, 2003). New York University Journal of Legislation and Public Policy, Vol. 7, No. 1, 2003-2004, Available at SSRN: https://ssrn.com/abstract=1330106

Cindy Galway Buys (Contact Author)

Southern Illinois University School of Law ( email )

1150 Douglas Drive
Carbondale, IL 62901-6804
United States
6184538743 (Phone)
62901 (Fax)

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