Resurrecting the Trinity of Legislative Constitutionalism

Abstract

For generations, scholars have called on Congress to counter the Department of Justice’s Office of Legal Counsel. They argue that a congressional OLC could safeguard Congress’s prerogatives in the face of executive and judicial aggrandizement. Recently, these calls have prompted Congress to consider the creation of a “congressional OLC.” But participants in this conversation have assumed that nothing like a congressional OLC has ever existed on Capitol Hill. 

This Article corrects the record. It provides the first analysis of 500 opinions and memoranda, comprising tens-of-thousands of pages of unsealed primary source documents, showing that Congress had something like a congressional OLC for a half-century. From 1919 to 1969, the Offices of Legislative Counsel for the United States Senate and the House of Representatives developed a system for resolving lawmakers’ constitutional questions with a hierarchy of precedential opinions, non-precedential memoranda, and briefs. When these Offices constructed constitutional meaning, they put a thumb on the scale for congressional power with a novel reasonable-doubt standard designed to vindicate Article I power. Lawyers in Congress used these opinions to construct constitutional meaning, establish drafting conventions, flesh out Congress’s role in the administrative state, and build up Congress’s hard and soft powers.

This Article unpacks the discovery of the opinions-drafting practice and its implications for constitutional law, administrative law, the separation of powers, and legislation. Using new tools and untouched primary sources, this Article exhumes a lost vision. Three Progressives—the “Columbia Triumvirate”—envisioned an institution that could vindicate Congress’s ability to enact social legislation by bringing “harmony” to the political branches. This vision, which is best preserved in the opinions-drafting practice, helps reveal a missing link in the Progressives’ vision for American democracy. That vision provides key insights into how we can expand Congress’s capacity to vindicate Article I power. 

The history in this Article has an immediacy in our era of “congressional declinism.” Like many Americans today, the Columbia Triumvirate looked at Capitol Hill with anguish. Their agenda depended on the construction of a new and implicit governing paradigm. The opinions-drafting practice helped inculcate the norms, procedures, and ideas that the Columbia Triumvirate brought to Congress from the Progressive Era. They realized that the unseen and mundane procedures of the legislative process help create our constitutional culture on Capitol Hill. If today we are unsatisfied with Congress, we need only imagine and build the institutional hegemonies that will help our national legislature maintain its place of primacy. 

Keywords: legislative constitutionalism, administrative law, separation of powers, legal history, Progressive Era, Office of Legislative Counsel, congressional bureaucracy