Lawmakers as Lawbreakers

Abstract

How would Congress act in a world without judicial review? Can lawmakers be trusted to police themselves? This Article examines Congress's capacity and incentives to enforce upon itself "the law of congressional lawmaking" - a largely overlooked body of law that is completely insulated from judicial enforcement.

The Article explores the political safeguards that may motivate lawmakers to engage in self-policing and rule-following behavior. It identifies the major political safeguards that can be garnered from the relevant legal, political science, political economy, and social psychology scholarship, and evaluates each safeguard by drawing on a combination of theoretical, empirical, and descriptive studies about Congress. The Article's main argument is that the political safeguards that scholars and judges commonly rely upon to constrain legislative behavior actually motivate lawmakers to be lawbreakers.

In addition to providing insights about Congress's behavior in the absence of judicial review, this Article's examination contributes to the debate about judicial review of the legislative process, the general debate on whether political safeguards reduce the need for judicial review, and the burgeoning new scholarship about legislative rules.

Keywords: Political Safeguards, Congress, Legislative Process, Legislation, Lawmakers, Legislative Rules, Legislative Behavior, Self-Policing, Due Process of Lawmaking