36 Pages Posted: 11 Sep 2004
Date Written: September 2004
Congress structures some of its deliberation and decision-making through framework legislation. Framework laws establish internal procedures and rules that will shape legislative deliberation and voting with respect to a specific subset of laws or decisions in the future. Although framework laws are passed in statutory form, the portions of the laws that set out internal frameworks are usually identified as exercises of the two houses' constitutional rulemaking powers, and the right of either house to change the framework unilaterally is, in most cases, explicitly reserved. Framework laws are familiar, although little scholarly attention has been paid to them as a related legislative phenomenon in the United States. I specify some of the conditions that are necessary for the adoption of framework laws. In Part I, I present two necessary conditions that make it possible for Congress to use a framework law to deal with a set of particular decisions defined in the framework. Even when these conditions are present, Congress may decline to use the option of a framework, but without the two conditions, a framework is not an option for lawmakers. First, Congress must be able to identify a concrete problem and describe it with specificity so that the framework can be triggered in appropriate circumstances. Second, the partisan configuration of Congress is significant in several ways to the adoption of framework laws, although further empirical work focused on each of the two houses is required to specify this condition more fully. In Part II, I assess three conditions that could lead Congress to choose the statutory path with respect to framework laws, rather than using an internal vehicle like a concurrent or simple resolution. First, Congress may use a statute to signal that it is making a significant change in the way it does business and that it perceives the change as more durable than other rule changes. I conclude that this has little explanatory power. Second, and most importantly, Congress will use a statute when the internal procedural change is an integral part of a larger package that must be adopted simultaneously and contains some parts that must be enacted with legal effect. In many cases, the framework is part of a larger "inter-branch treaty" that affects both houses of Congress and the executive branch, often with provisions delegating authority to the President. This is a necessary condition for enactment of frameworks. Finally, path dependency and institutional learning play a role, so that when an area like budgeting or trade begins to be characterized by rulemaking statutes, then future changes also tend to be adopted by statute. This is a plausibility condition, making it more likely that internal rules will be adopted by statute, but it is not a necessary condition.
Suggested Citation: Suggested Citation
Garrett, Elizabeth, Conditions for Framework Legislation (September 2004). USC Law and Economics Research Paper No. 04-23; and USC CLEO Research Paper No. C04-20. Available at SSRN: https://ssrn.com/abstract=588901 or http://dx.doi.org/10.2139/ssrn.588901