Framework Legislation and Federalism

50 Pages Posted: 29 Sep 2007

Abstract

Congress sometimes adopts internal rules of procedure as part of statutes, or framework laws, which establish internal procedures that will shape legislative deliberation and voting with respect to certain decisions in the future. In one area that affects the relationship between the federal government and the states - the enactment of unfunded mandates that burden states and localities - Congress has adopted a framework law: the Unfunded Mandates Reform Act of 1995. UMRA has been in effect for over a decade and is an integral part of the procedural environment shaping congressional consideration of certain proposals implicating federalism. In general, UMRA increases the hurdles, in both the House and Senate, to enactment of new unfunded mandates. In this article, I will use the theoretical work on framework laws I have developed elsewhere to assess UMRA. In Part I, I will briefly describe UMRA and relate it to the larger congressional budget process framework, of which UMRA is part. In Part II, I will determine which of the purposes of framework laws UMRA serves, concluding that it serves, to greater or lesser extent, four purposes. It provides a symbolic response to an issue made salient in the early 1990s; it provides a solution to collective action problems often encountered by multimember legislatures, particularly as it provides information to lawmakers about the scope of proposed unfunded mandates; it is a precommitment and entrenchment device to make it harder for Congress to pass unfunded mandates imposing costs above a certain threshold; and it shifts power away from committees to individual members and to party leaders. In Part III, I will discuss why UMRA was passed as a statute, rather than as simple resolutions changing the internal rules of each house. Finally, in Part IV, I will identify and discuss two of the challenges facing framework laws designed to further the values of federalism. First, any framework law, including those dealing with federalism, must define ex ante the universe of future proposals to which it will apply. That is part of the explanation for UMRA's narrow targeting of unfunded intergovernmental mandates. Other federalism frameworks could aim at different, relatively concrete problems, such as preemption or conditions of assistance. Second, the role that a framework law like UMRA should play in judicial review is unsettled. Potentially, courts could police Congress' adherence to its own internal rules, especially those passed as framework legislation. I conclude, however, with skepticism about judicial review of compliance with framework laws. Not only would it likely lead to a congressional response to avoid judicial review in many cases - perhaps reducing the use of framework laws generally - but courts would also find it challenging to discern whether lawmakers had complied with internal rules in any particular decision.

Suggested Citation

Garrett, Elizabeth, Framework Legislation and Federalism. Notre Dame Law Review, Forthcoming, USC CLEO Research Paper No. C07-11, USC Law Legal Studies Paper No. 07-11, Available at SSRN: https://ssrn.com/abstract=1017874

Elizabeth Garrett (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
213-740-0064 (Phone)
213-740-5502 (Fax)

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