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, which offers legal advice that bolsters presidential power. They argue that a “congressional Office of Legislative Counsel (OLC)” could safeguard Congress’s prerogatives in the face of executive and judicial aggrandizement. Recently, these calls have prompted Congress to consider creating such a body. 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 five hundred opinions and memoranda showing that Congress had something like a congressional OLC for a half-century. From 1919 to 1969, the two Offices of the Legislative Counsel—one in the Senate and one in the House of Representatives—developed a system for resolving lawmakers’ constitutional questions using a hierarchy of precedential opinions, nonprecedential memoranda, and briefs.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 this 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”—built 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 Congress.
The Columbia Triumvirate’s actions provide an important example of institution building amid today’s “congressional declinism.” Like many Americans now, the Columbia Triumvirate looked at Capitol Hill with anguish. Their agenda depended on the construction of a new and implicit governing paradigm. While the opinions are important historical artifacts, their very existence is the more consequential discovery. Ultimately, this Article provides a thick history of the opinions-drafting practice to help us better understand institutional development within Congress. This Article simultaneously aims to help us rediscover the spirit of institutional innovation that gripped the Columbia Triumvirate. If today we are unsatisfied with Congress, we should imagine and build the institutions that will help our national legislature maintain its place of primacy.
author. Ph.D. Candidate, Yale Law School. I thank Jenné Ayers, Josh Chafetz, Jesse Cross, Blake Emerson, Bill Eskridge, Nick Parrillo, Noah Rosenblum, Stephen Skowronek, Chad Squitieri, Allen Sumrall, and Alex Zhang. Thanks go to the families of Thomas I. Parkinson, Clayton E. Turney, and Thomas R. Mulroney, who provided new documents and fresh insights into the lawyers described in this Article. I am grateful to the Oscar M. Ruebhausen Fund for financially supporting my research. The research behind this Article would have been impossible without the phenomenal assistance of Adam Berenbak of the National Archive’s Center for Legislative Archives.
Finally, I appreciate the tireless efforts of the Yale Law Journal editors, who elevated this Article in ways that would have been impossible without them. Thank you all for taking a chance on a young scholar with an admittedly unusual piece of legal scholarship.
Introduction
On May 27, 1929, Senator David Reed (R-PA) strode onto the Senate floor near the pinnacle of his institutional prestige.1 Reed, a decorated veteran of the Meuse-Argonne offensive, personified the postwar period’s jingoistic patriotism.2 Five years earlier, Reed helped codify the national zeitgeist with the 1924 Immigration Act (the Johnson-Reed Act).3 The Act sharply limited the flow of new immigrants.4 It fit within Reed’s project, which emphasized the reification of Anglo-American political and cultural power.
Reed arrived on the floor to discuss measures that would further limit the role of immigrants in American life. Having restricted immigration to a trickle, nativists looked forward to the 1930 census as an opportunity.5 The Senate was debating a provision that would exclude noncitizens from the census count and curb their political influence.6 Because the law implicated the same nativist feelings that were behind the 1924 Immigration Act, all eyes fell on Reed.
Reed’s first remarks that day were entirely in keeping with his reputation and legacy. He said, “I do not remember a time when I have been faced in the Senate with a proposition which has my more ardent support than this amendment.”7 The avatar of Senate jingoism could appreciate the provision’s allure, its potential for siphoning political power away from cities and immigrant communities. “I want to vote for it,” Reed said.8 “[E]verything in my experience and outlook would lead me to vote for this amendment if that possibly could be done.”9
But from there, Reed broke from the expected script. As much as he “wish[ed] that it [was] possible,” he was “oath bound” to vote against it.10 In his telling, excluding noncitizens from the census “would be unconstitutional” under the Fourteenth Amendment and would “jeopardize the entire measure.”11
When the stunned Senator Henry Allen (R-KS) demanded that Reed name his authority,12 Reed responded that he reached this conclusion after consulting an opinion prepared by the Office of the Legislative Counsel for the U.S. Senate.13
The measure failed after the defection of Reed, who was arguably the most successful nativist lawmaker in Congress.14 Reed helped set a precedent that stands to this day.15 Although courts have only rarely addressed this legislative precedent, most observers think that Congress lacks the power to exclude noncitizens from the census.16
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This story confounds the literatures of legal scholars, political scientists, and historians. When the Reed episode took place, the Office of the Legislative Counsel was a fledgling drafting office.17 What was it doing advising Reed on the constitutionality of pending legislation? And why should Reed have cared what the Office had to say? Scholars have dismissed the Office’s pre-1970s influence, characterizing it as weak and inconsequential.18 The existing literature has no answer to the influence on display in the Reed incident. And the neglected historical record shows that this was no isolated incident: this Office wielded an uncanny ability to convince lawmakers that even their own legislation had to be abandoned as unconstitutional.19
Several strands of scholarship are implicated. Legal scholars are newly interested in the “congressional bureaucracy,” the nonpartisan offices that help Congress legislate.20 These scholars mine the congressional bureaucracy for doctrinal insights and to model Congress’s performance in the separation of powers. For example, Jesse M. Cross and Abbe R. Gluck argue that Congress built its bureaucracy to counter executive aggrandizement.21
Separately, scholars have spent decades lamenting the absence of any congressional equivalent to the Department of Justice’s (DOJ’s) Office of Legal Counsel.22 DOJ’s Office of Legal Counsel provides legal opinions that settle constitutional and subconstitutional questions as they arise in the executive branch.23 Historically, the Office of Legal Counsel has been populated by lawyers and scholars with an outsize view of presidential power, prompting scholars to complain that the Office has abetted the rise of presidentialism for almost a century.24 The simultaneous expansion of judicial power and fears of “juristocracy” have left scholars with the impression that Congress is the only branch of government without lawyers dedicated to vindicating its own constitutional power.25
Scholars claim that a congressional equivalent to the Office of Legal Counsel is necessary to safeguard Congress’s interests.26 As a result, Congress is considering whether to build such a counterweight.27 Lawmakers recently asked the Government Accountability Office (GAO) to examine the feasibility of this proposal.28 In December 2023, GAO’s report weighed Congress’s options without taking any concrete stance.29 The GAO report followed the literature in assuming that nothing like DOJ’s Office of Legal Counsel has ever existed in Congress.
This Article corrects the record by providing the first analysis of five hundred opinions and memoranda showing that Congress had something like DOJ’s Office of Legal Counsel for a half-century.30 From 1919 to 1969, lawmakers solicited “opinions of the Office” from the Senate Office of the Legislative Counsel (Senate OLC) and the House Office of the Legislative Counsel (House OLC).31 These opinions constructed constitutional meaning, set drafting conventions, and helped Congress build its “hard” and “soft” powers.32 The congressional OLCs maintained this practice in excess of their statutory mandate, which was entirely focused on statute drafting.33
Congressional OLC opinions provided a substantive law within Congress defined by a strong form of stare decisis.34 An opinion of the Office was precedential: it bound the congressional OLCs prospectively in drafting opinions and statutes.35 This Article discusses the force-of-law drafting convention, a way of drafting statutes that flowed from opinions.36 This is a key example of how precedential opinions could impact the drafting of consequential legislation. The congressional OLCs wrote opinions and drafted statutes; the mutually reinforcing relationship between these two activities is a major theme in this Article.37 This practice resembles the opinions later issued by DOJ’s Office of Legal Counsel. Separately, the congressional OLCs issued nonprecedential memoranda that resolved less consequential issues, cemented drafting conventions, and preserved institutional memory.38 Third, the Offices issued briefs that did not represent the drafters’ view of the law.39 Instead, lawmakers would assign the congressional OLCs a particular viewpoint to flesh out in writing. The congressional OLCs kept these three categories separate with signals in their work product.
The congressional OLCs’ system also helps us better understand the nature of legislative constitutionalism within Congress. If legislative constitutionalism were just politics by another name,40 then this category of opinions would be pointless. Lawmakers’ eager consumption of the Offices’ views of the law, marketed as legal products distinct from briefs, shows that lawmakers had a genuine interest in vindicating their constitutional oaths. This point is further illustrated by this Article’s empirical findings, which show that the opinions-drafting practice was especially powerful among a cadre of bipartisan lawmakers who made constitutionalism a key part of their legislative politics.41 This is the grouping of lawmakers in both chambers who communicate to their constituents and to their colleagues with a heavy emphasis on constitutional norms and ideas.
To understand the rise of the opinions-drafting practice, this Article details the historical contingencies that made it possible,42 including developments inside Congress (e.g., the 1910 rebellion in the House and the rise of Southern Democrats) and in the broader culture (e.g., Progressives’ emergence as a distinct social class). It also discusses internal developments within the congressional OLCs that powered and then doomed the opinions-drafting practice.43
Though influential,
the opinions-drafting practice ultimately failed to overcome the material
realities of Congress.44 The congressional OLCs depended on the
support of Southern Democrats who were newly ascendant in the “Jim Crow
committee
system.”45 These Southerners allowed the congressional
OLCs to skirt the thin specifications of the Offices’ organic statute.46 While these Southerners could cosign
state-building projects, their influence required the opinions-drafting
practice to declare unconstitutional bills that would have ameliorated the
worst realities of the racial caste system.47
They constructed a “southern cage” that constrained the practice’s potential
for decades.48
This lost history of the opinions-drafting practice should inform extant calls for a congressional equivalent to the Office of Legal Counsel. The history recovered in this Article shows that these reform efforts are more than a pipe dream—they are an attempt to rebuild what was lost. In a time when fears of “congressional declinism”49 are “rampant,” the story of the Columbia Triumvirate is a tonic.50 These insights will be instructive as scholars think about how to reify Congress’s role in our government. And as policymakers weigh the 2023 GAO report, the lessons of the Columbia Triumvirate should loom large.
Part I of this Article overcomes what is perhaps the greatest barrier to understanding the opinions-drafting practice: the legal academy has almost completely ignored the practice’s architects. The congressional OLCs and the Offices’ opinions-drafting practice were created by three Progressives known as the “Columbia Triumvirate.”51 These three—Joseph P. Chamberlain, Thomas I. Parkinson, and Middleton Beaman—set out to reform Congress so that it could enact “social legislation.”52 By focusing on the Columbia Triumvirate at the expense of other, more familiar figures (whether Harlan Stone or Ernst Freund in the United States, or the likes of James Bryce in the United Kingdom), this Article casts unexpected light on the Progressives’ designs on Congress.
Part II examines several layers of context that help us understand the Columbia Triumvirate’s world. These layers include the different political constituencies in favor of a bill-drafting bureau, a 1910 rebellion in the House of Representatives that paved the way for the Columbia Triumvirate’s work, and a wave of bureaucratization that swept through Anglo-American legislatures, including the U.S. Congress.
Part III narrates the creation of the congressional OLCs and the opinions-drafting practice. In particular, it highlights the historical contingencies at play and the Columbia Triumvirate’s role as savvy “policy entrepreneurs.”53 From 1910 to 1914, the Columbia Triumvirate mobilized a wide-ranging coalition to create what would become the congressional OLCs. They were directly involved in efforts to pass legislation that would have established the congressional OLCs, deploying different arguments to target key legislators.54 Congress ultimately failed to enact the legislation, thwarting the Columbia Triumvirate for several years.55 After regrouping, the Columbia Triumvirate pried open the “policy window” by recalibrating their pitches around the agenda of a newly ascendant Democratic Party.56 This second attempt proved successful. But the triumvirs’ initial failure portended problems that would later undermine the opinions-drafting practice.57
Part III’s second-order objective is to correct the literature on the congressional bureaucracy. The existing literature tends to provide a linear story of consistencies across different Congresses.58 The resulting narrative surrounding the congressional bureaucracy ignores its relationship to distinct constitutional politics and political economies.59 It misses how each component of the congressional bureaucracy was designed around particular ends. The congressional OLCs, for example, were built to ensure the production of social legislation and new modes of regulation.60 This Article pivots to politics to contextualize the congressional bureaucracy’s development.61 It describes “disjointed pluralism”: institutional developments within Congress are stacked on top of one another in ways that can be in tension or inconsistent.62 In this case, a coalition came together to create the congressional OLCs and the opinions-drafting practice, only to be displaced by subsequent developments in the 1950s and 1960s.63
Part IV gives an overview of the opinions-drafting practice. Because the materials are too voluminous to discuss each opinion in detail, this Part focuses on some of the practice’s outputs to illustrate the Article’s broader themes and to illuminate the practice’s inner workings. It provides a brief glimpse into the world of the congressional OLCs with new materials absent from the existing literature. Within a few years of the creation of the congressional OLCs, the Columbia Triumvirate created a powerful institution with connections across Capitol Hill, the administrative state, and even the White House. This new institution, and the personalities that drove it, laid important groundwork for the New Deal, and ultimately helped realize Franklin Delano Roosevelt’s reconfiguration of the American state.64
Part V discusses the downfall of the opinions-drafting practice. By the end of the 1940s, the Columbia Triumvirate and its followers had achieved many of their objectives. They were followed by a younger generation of congressional bureaucrats who were in the process of abandoning the Triumvirate’s vision. In the end, the opinions-drafting practice drowned in still waters. Instead of a counterrevolution, the practice was quietly snuffed out by a generation of bureaucrats who flinched at the Triumvirate’s aspirations. While the existing legislation literature presents a Whiggish history of progress,65 this Article suggests that some developments between and after the 1946 and 1970 Legislative Reorganization Acts presented serious setbacks to the congressional bureaucracy’s influence and functioning.66
The Conclusion gestures at future avenues of research with a focus on institutional developments within Congress. Because of the vast scope of the materials unearthed (including materials beyond the opinions-drafting practice), this Article sets the table for a multi-article agenda that will be published over several years. One article in this series will focus on the opinions-drafting practice’s implications for our conception of legislative constitutionalism. A second article will show that the Columbia Triumvirate’s techniques revolutionized Congress’s statute drafting and made the statutory state possible. This second article will deal with related doctrinal questions, such as whether the congressional OLCs made textualism and purposivism possible by making Congress’s statutes professional and legible. Finally, a third article will place the Columbia Triumvirate in a jurisprudential lineage that complicates our understanding of twentieth-century legal schools of thought.
Before proceeding, a
caveat. I do not mean to suggest that the Columbia Triumvirate used the
opinions-drafting practice to “capture” Congress and dictate outcomes.67
Instead, the practice was an implicit governing paradigm—a practice that
specified a means for analyzing legal questions in Congress that sustained its
creators’ own normative priors.68
The opinions-drafting practice did not ensure any particular outcome in the
legislative process. But that does not mean that it was neutral. It embedded
the Triumvirate’s worldview, norms, and priorities in the legislative
process.69 Because lawmakers, like bureaucrats, are
shaped by the institutions they inhabit, institutional developments may shape
official actions.70
This means of institutional hegemony was also reinforced by the revolving doors
between the Legislative Drafting Research Fund (LDRF), the congressional OLCs,
agency positions, and the private sector. The Columbia Triumvirate’s students
headed to Capitol Hill and were greeted by a procedure that sustained their
teachers’ mission. This dynamic behind the opinions-drafting practice is worth
studying and, perhaps, replicating.
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The Appendix for the Article can be found here.