60 Pages Posted: 30 Jul 2011
Date Written: July 29, 2011
Congress has traditionally enjoyed wide latitude in deciding whether and to what extent it bases decisions on policy-relevant knowledge or articulates the factual foundations for its actions. Until recently, even when evaluating statutes under close judicial scrutiny, the Supreme Court has tended to defer to Congress' special competence as the fact-finding branch of the federal government. Such deference recognizes the significant fact-finding value inherent in Congress' ability to conduct hearings and investigations, subpoena witnesses and documents, and assign to legislative committees and staff responsibility for detailed scrutiny of legislative proposals, their factual foundations and their suitability as responses to social policy concerns. It also recognizes that the variety of backgrounds and interests among legislators enables them to draw upon a wide knowledge of social and economic conditions. In addition, the tradition of judicial deference respects the democratically elected legislature as the primary source of statutory law.
This article examines some contemporary aspects of the tradition of judicial deference to legislative fact-finding and offers three observations.
First, the Supreme Court's decisions in Adarand Constructors, Inc. v. Pena and United States v. Lopez reflect too little deference to the legislature's fact-finding role. Viewed in combination with the textualist approach to statutory interpretation the cases constitute a disturbing judicial challenge to Congress' position as the authoritative source of statutory law. They are also signs of a larger trend toward limiting the federal government and challenging the legitimacy of many of its actions, revealed to a great extent in revitalized judicial interest in the Tenth Amendment. Even Congress seeks to reduce the role of the federal government. A centerpiece of the welfare reform legislation, for example, is increasing use of "block grants" that give money for social programs to the states with far fewer federal constraints on how they may use the funds.
Second, in response to limited Supreme Court deference to congressional fact-finding the electorate should press Congress to make better use of factual information. The electorate is entitled to question whether its representatives in Congress are legislating wisely.
Finally, to counter the troubling effects of Adarand and Lopez, to enrich public policy debate and decision-making, and to strengthen the factual records that are subject to judicial review, Congress should take increasing care to develop and articulate the factual foundations of its actions.
Keywords: congressional fact-finding, congressional procedure, legislative fact-finding, legislative procedure, statutory interpretation, factual findings, judicial deference, U.S. v. Lopez
JEL Classification: K00, K10, K19, K4, K40, K49
Suggested Citation: Suggested Citation
Morisey, Muriel, What Congress Knows and Sometimes Doesn't Know (July 29, 2011). University of Richmond Law Review, Vol. 30, p. 653, 1996. Available at SSRN: https://ssrn.com/abstract=1898781