Superstatutory Entrenchment: A Positive and Normative Interrogatory
William Eskridge, Jr., and John Ferejohn’s magnum opus on “small ‘c’” constitutionalism and the republic of statutes is an unusually wide-ranging work of legal and political analysis, one that defies comprehensive summary. In this Essay, we bore in on a central element of their thesis: the idea of entrenchment. In A Republic of Statutes, legal entrenchment is used to tether the authors’ normative theory of American constitutionalism to a positive political theory of law. Entrenchment purports to explain how superstatutes arise from successful social movements; further, it explains how these statutes, and the administrative apparatus built to implement the policies encoded in these statutes, become durable features of our American constitutional structure. Insofar as entrenchment does the heavy lifting in A Republic of Statutes, it is imperative that we have a clear picture of what entrenchment means. Such meaning, however, will be elusive.
We see entrenchment used in Eskridge and Ferejohn’s book in three distinct senses: as a sociopolitical fact, as a part of a dynamic political process, and as an appealing normative value. Each of these senses of entrenchment raises distinct positive and normative issues. Our principal interest here is in exploring the connection between entrenchment in the different senses in which it is used by Eskridge and Ferejohn and their provocative view of certain statutes as special—that is, special insofar as such statutes encapsulate the policies of an important social movement.
What we find problematic in A Republic of Statutes is the idea of entrenchment. First, entrenchment is depicted as a sociopolitical fact; that is, we can distinguish entrenched (superstatutes) from non-entrenched statutes by looking closely at the features of the statute and, relatedly, the processes by which the law came into being. Second, entrenchment is explored as a rather protean concept, representing one key element in a dynamic political process. This process cannot be grasped as a historical snapshot but only as a complex conception of politics and social imperatives impacting, and being impacted by, external and internal pressures. Third, it is depicted at different junctures as a normative value. Here the key point is that certain statutes have earned special solicitude for their ambitions in tackling significant social ills, for the way in which their processes of administrative constitutionalism confront the social problems at issue, and for the treatment given to them by prominent legal institutions and the public in the context of implementation and efforts at change. To be sure, these three depictions of entrenchment are appealing in different ways and for different purposes. Yet they leave us, in the end, with some confusion about what exactly is meant by “entrenchment.”
In this Essay, we interrogate the concept of entrenchment in A Republic of Statutes, unpacking the assumptions and arguments that underlie the three senses of the concept described above.
I. Entrenchment as Sociopolitical Fact
Eskridge and Ferejohn use entrenchment to describe a fact of social and political life; that is, a sophisticated member of the society can look at certain statutes and statutory features and come to the conclusion that they are entrenched against repeal, avoidance, and desuetude. Statutes become entrenched, Eskridge and Ferejohn argue, when they unfold from a legislative process that is broadly deliberative, takes place over a long period of time, and involves several institutions cooperating with one another to craft widely acceptable social policy. Deliberation over policy transforms vigorous disagreement into general acceptance of at least the norms embedded in the policy. The main responsibilities of implementation are left to administrators and, episodically, courts. With entrenchment, administrators figure out practical, cost-effective ways to implement these superstatutes, taking care to avoid disasters and, all along, cultivating enthusiastic, dynamic, and growing bases of support in society at large. In sum, these ambitious laws mature into superstatutes through an evolving process that is institutional, deliberative, and popular.
With this framework in mind, we should be able to distinguish between statutes that are entrenched and those that are not, and, further, we should draw sensible normative conclusions from a close examination of entrenched and non-entrenched statutes. This framework suggests strongly that entrenchment is a sociopolitical fact which can and should be evaluated, and ultimately valued, as such. The contours of this idea of entrenchment can be illuminated by looking at one key feature of their analysis: the notion of deliberation.
Deliberation does its work in A Republic of Statutes as a means of understanding how legislators should grapple with competing norms in fashioning policy and how all stakeholders should interact with one another in the processes by which policies are implemented, interpreted, and reformed. The key contribution of deliberation in the general scheme is mapped out with care in a section of chapter 2 entitled “Entrenchment by Deliberation.” Here Eskridge and Ferejohn distinguish between purely private-regarding notions of policy enactment, which they characterize as arbitrary and frequently venal, and “republican” conceptions of policymaking, which view the legitimacy and efficacy of policy as requiring careful deliberation.
The elements of this deliberation are capacious and overlapping. These elements include broad participation (“what affects all must be decided by all” in what the authors call the “postclassical republican” paradigm), responsiveness, extra-governmental feedback, and something that Eskridge and Ferejohn label “commonsense institutional reasoning.” Though essentially tracking the modern normative literature on deliberation, the formulation in A Republic of Statutes gets at something more nuanced and novel. The kind of deliberation that drives legitimate, efficacious policy is found distinctly in legislative and administrative processes that are designed to absorb and utilize pertinent information and political values in shaping policy. The aim of this process is not only “good” policy, where quality is measured by external criteria of performance, but also wide acceptance by the public. By “entrenchment,” the authors mean “that it is beyond partisan debate.” Deliberation, then, is used in its strongest sense; it is a means by which opponents are brought around to agreement (and not simply acquiescence).
As an account of the contemporary legislative process, this sense of deliberation is not well supported in the literature on collective decisionmaking; nor is it supported by the literature on Congress and its lawmaking processes. To recount briefly the objection made in previous work by us and others, deliberation works to yield consensus only when one of three conditions obtain:
|(1) Everyone participates and announces truthfully and completely their desires, messages are broadcast to all, everyone listens to some or all of the participants, and everyone updates their prior beliefs about policy. This process is repeated until consensus is reached; or|
|(2) Policy choice is very cheap and easy, and the costs of listening and speaking are zero or trivial; or|
|(3) Only very few choices are available and the “network” that connects everyone is a fully constrained small-world network.|
In all other circumstances—and even a casual understanding of collective choice in the real world suggests that the real world is filled with these “other circumstances”—deliberation will not improve overall wellbeing. While not the place to undertake a comprehensive analysis of deliberation and its efficacy, our observation here is that the claim central to Eskridge and Ferejohn’s analysis of entrenchment as deliberation rests on some stylized, and ultimately controversial, assumptions about individual and collective behavior.
The assumptions made about congressional behavior and deliberation are problematic as well. Modern work in the tradition of positive political theory sees the legislative process as one in which purposive, strategically minded legislators create procedures and adopt strategies in order to realize goals in a process of relentless competition. Whatever their underlying motivations, these actors deploy the resources available to them within the legislative process in order to fashion proposals which can command the assent necessary to get through the Article I hoops for constitutionally proper lawmaking. The conditions for lawmaking, then, are at least twofold: first, there must be a democratically worthy policy, one whose worthiness is measured by its ability to gain sufficient support for enactment; and, second, the policy must accord with constitutional requirements—in this respect, “Large ‘C’” constitutional requirements.
These constraints are difficult to satisfy. The Constitution makes legislation difficult to enact; intralegislative rules and practices (for example, the filibuster in the Senate) make it more difficult still. Moreover, the behavioral incentives of legislators must be confronted in order to overcome the various obstacles and “vetogates” within the legislative process. This arrangement leaves us with a glass both half full and half empty.
The capacity of the modern legislative process to accomplish important public agendas rests not on the strength of the better argument, as often assumed by those enamored of deliberation, but on the incentives and abilities of legislators to compromise. Members of the modern Congress should keep in mind Voltaire’s warning that “[t]he best is the enemy of the good.” How legislators compromise is complicated, but we can say with confidence a few things of pertinence. First, most bills are tabled after they are introduced; second, legislators bargain hard with one another on the final contours of legislative policy. This usually means that some goals and agendas are sacrificed at the altar of what is possible. Thus, where policy may have started out as a means of implementing a momentous national objective (think here of health care reform as a prominent recent example), the end result may be a law that reflects a more moderate set of priorities and methods together with a complicated division of the social weal. Deliberation may be important to the process, as Eskridge and Ferejohn suggest, but this deliberation may serve more of a role in implementing and ensuring compromise than in drawing on the collective wisdom of legislators to craft the best possible policy. So viewed, nearly all policies will meet the criterion of “deliberation” and thus satisfy a key element of entrenchment. Yet, we can be fairly sure that Eskridge and Ferejohn have something nobler in mind when they describe legislative deliberation.
Second, and relatedly, legislators and administrators are always making tradeoffs. To be sure, tradeoffs are desirable in Eskridge and Ferejohn’s account (and also in ours), and they see the process of postenactment implementation as tracking the imperative of measuring means and ends in light of the costs and consequences of making one decision rather than another. Administrators are viewed as perfect Bayesian automata. But if tradeoffs are a ubiquitous part of the legislative process, how can we be sure that a statute does not in any particular case represent a tradeoff made in order to secure a particular legislative victory, rather than a more far-reaching one, representing the tenets of a broad sociopolitical movement?
Consider, in this light, the National Environmental Policy Act (NEPA). This statute, a centerpiece of the Great Society environmental movement, developed a protocol for administrative processes where threats to the environment were possible. Famously, it required the preparation of an “environmental impact report” before certain steps were taken. Yet, as the courts plausibly read the statute, the law did not compel any particular requirements vis-à-vis the environment. It imposed procedures—a significant step by any measure—but did not reflect a substantive mandate for environmental protection of a particular sort or level. We can see NEPA as reflecting deliberation of sorts, but the kind of deliberation more akin to the struggle toward compromise and the studied consideration of tradeoffs. In the shadow of what was just emerging in the late 1960s as a full-blown environmental movement, the tendency toward compromise was understandable.
Other statutes of this era reflected some of the same tendencies. To call these “green” statutes superstatutes reflects a view of twenty-first century regulatory America looking at statutes enacted in a very different sociopolitical context. More specifically, to see the processes at work in enacting NEPA as deliberative makes sense only if we see deliberation as a mechanism for addressing deep political conflict through ordinary legislative mechanisms. Moreover, partisan debate hardly ceased in the years following the enactment of NEPA; it has not ceased since. Indeed, the resilience of most Great Society-era environmental statutes can be chalked up to two important considerations, one of which is their moderate quality—moderation forged not necessarily through the uncontested judgment that moderation is a policy virtue, but through the informed judgment that the hopes and dreams of progressive advocates must be tethered to the reality of legislative politics and public opinion. The other is, just as Eskridge and Ferejohn note, the agility of the administrative process to negotiate conflict and manage tradeoffs. The superiority of these laws to ordinary legislation can best be measured, we might suggest, by their ability to finesse big-picture republican deliberation and to encourage more incremental approaches to addressing matters about which reasonable people and politicians disagreed then and still disagree now.
Where does this leave us with respect to deliberation and entrenchment? The thick sense of deliberation embraced by Eskridge and Ferejohn is hard to square with the thinner sense reflected in a focus on compromise and considered tradeoffs. Unless deliberation is taken to mean legislative dialogue of all sorts, it must connote something considerably more robust as a mechanism of sharing assumptions, debating basic norms, grappling with matters of implementation, and changing hearts and minds. Indeed, Eskridge and Ferejohn intend a broadly ambitious notion of deliberation. “The goal of deliberation,” they say, “is to confirm or create conditions for establishing the legitimacy of state action affirmatively pursuing the more immediate republican goals.”
While A Republic of Statutes, for all its considerable ambitions, may not be the place for a full-blown empirical analysis of the role of deliberation in legislative decisionmaking, it is hard to get from the condition of deliberation to a rendering of entrenchment as a sociopolitical fact without a claim, based on compelling theory and evidence, that deliberation truly does take place.
II. Entrenchment as Political Process
Entrenchment is used elsewhere to describe some of the complexities of the political process. Thus, a sense of entrenchment distinct from its use as a sociopolitical fact emerges from the various chapters dealing with social policy and administrative implementation. In each instance, Eskridge and Ferejohn plausibly show that controversial policy becomes hard-wired into American law and politics. Bush confronts the third rail of Social Security, family law becomes transformed in ways that are nearly impenetrable, and so on. Entrenchment, in this account, emerges from an admixture of political, administrative, and legal decisions. This provides a helpful way of understanding why and how processes of administrative constitutionalism can shield policies from changes in a way akin to “Large ‘C’” constitutionalism, but for a different rationale. Superstatutes are different in kind because the politics are different. The dynamics of the political process in certain policy contexts counsel a different approach to understanding the nature of particular statutes, and a general perspective on these special political processes helps inform a truly new American constitutionalism. This approach has elements in common with Bruce Ackerman’s influential reformulation of constitutional governance. Likewise, it reinforces the insights of the growing number of scholars looking to the “constitution outside the Constitution” or, somewhat relatedly, the imperative of constitutional interpretation and implementation outside of courts and within more popular, democratic contexts.
The use of entrenchment to describe in a commendably nuanced way the dynamics of the American political process is most fully developed in the authors’ discussion of policy change through administrative implementation. The foundational normative insight is this: entrenchment does not mean that statutes can never and ought never to change; entrenchment need not be a synonym for rigidity. How this squares with the underlying picture of superstatutes and “small ‘c’” constitutionalism is far from obvious. After all, the imperative of updating policy in light of new information and circumstances is in tension with the underlying logic of entrenchment. How should we see these mechanisms of change as means of preserving rather than disserving entrenchment? At what point does the implementation or interpretation of the statute undermine its very structure? The line between entrenchment-preserving adaptability and disentrenchment is a blurry one, and further clarification is necessary to get straight the nature and stakes of this important distinction.
The idea of entrenchment in A Republic of Statutes supposes that we can look at the dynamic process of implementation and glean from it that agencies are vested with appropriate power and prerogatives. “[S]uccessful entrenchment of statutory principles and structures depends,” they argue, “upon astute administrative strategizing.” This is, of course, the key move in their argument for new constitutional regimes. Administrative action, carried out in the shadow of entrenched superstatutes, helps ensure policy agility while also safeguarding the basic structure of the public policy created through statute. As Eskridge and Ferejohn tightly summarize the point, “The process by which statutory principles and policies are entrenched in our polity usually depends on the ability of administrators to flesh out those principles and policies into a coherent and attractive statutory scheme.”
This move, however, conflates two different ideas. The first is that administrative implementation is inevitable, and that agencies are essential in any scenario in which policy choices must be made ex post. The second idea is that Congress, as an empirical matter, intends to vest in agencies broad administrative authority. These ideas are distinct, and they rest on different insights about the legislative and administrative process.
Most positive theories of administrative governance posit that Congress delegates a certain scope of authority to agencies in order to accomplish important objectives. The depiction of administrative constitutionalism in superstatutes can rest comfortably with various theories of delegation, and for the most part, Eskridge and Ferejohn elide the questions of precisely why and in what circumstances Congress delegates authority. What they do insist, however, is that delegation to administrators facilitates the institutionally interactive, evolving process of policy implementation and thus enables political officials to manage conflict, to deliberate consciously and constructively, and ultimately to turn controversy into consensus. This was the process, for example, that enabled Social Security to become entrenched. Likewise, it managed the conditions under which the extant understandings of family and marriage were refashioned to accommodate new demands for gender equality. Agencies were critical to both enterprises; and whatever the reasons for administrative delegation in the first instance, the fact that agencies (state and federal) were principal players in the policymaking process ensured that these superstatutes would endure.
These case studies do not bring us much closer, however, to an insight about whether this schema reflects deliberated-upon choicesof elected legislators. This is, after all, an omnibus analysis of statutes—their origins, functions, and place in constitutional governance. What role do these statutes, each brought into being by a majority of legislators, play in entrenching processes of social policy? The tacit counterfactual of the argument is that legislators would have worried at the time of enactment if they could have known that their handiwork would become entrenched (and, in the case of family law, fundamentally refashioned) in light of administrative decisionmaking. It is hard, though not necessarily impossible, to square the evolution of these policies in the direction of entrenchment with a model of congressional choice and deliberative legislative action.
Perhaps the way to square the actual evolution of policy with the model is to view agency discretion as inevitable; that is, administrative constitutionalism in the form depicted here is an accommodation to the need for flexibility in the face of shifting public opinion and various vetogates. That agency discretion is inevitable is a notion made plausible by the authors’ account of the wide spaces for choice in the implementation of regulatory policy. It would appear that agencies are especially well suited to make sense of lacunae in policy; the processes of rulemaking and administrative statutory interpretation are designed to do just that. Indeed, administrative constitutionalism, they submit, is the “dominant governmental mechanism for the evolution of America’s fundamental normative commitments.” Moreover, the modern structure of administrative law—wherein agencies’ interpretations are given broad deference under the Chevron-Mead formulation and where the “hard look” given by reviewing courts to agency decisions is still fundamentally procedural and accords with the expectations of broad administrative discretion—is copasetic with this ideal of administrative constitutionalism. So, in the end, the agencies’ role may be an inevitable result of a general model of regulatory policymaking, one that sees as central an assessment of the comparative institutional competencies of legislatures, agencies, and courts and one that is therefore well embedded in an imaginative “new legal process” picture of constitutional governance in the twentieth and twenty-first centuries.
This is not the only plausible model of regulatory administration. If we see the choice and strategies of administrative decisionmaking as principally the prerogative of our elected legislature and President, then the fashioning of the agencies’ essential role will look quite different, at least from the vantage point of positive theory. To bring this back to the subject of entrenchment, suppose that agency structure and prerogative are tied squarely to choices made by legislative principals. Do we see entrenchment as a feature of the statute created in the first instance and agencies as mere agents of this policy? If so, then administrative constitutionalism is principally a means by which congressional preferences are realized. Entrenchment is manifested in how Congress designs the statute; agencies are just following orders. While this stylized portrayal of legislative-administrative renderings is subject to dispute—and, indeed, it has often been disputed—it does align more comfortably with the idea of entrenchment as a sociopolitical fact. We may expect social policies to evolve in the shadow of shifting public preferences and political objectives (again, the case studies described in A Republic of Statutes illustrate well these patterns of policy evolution), but these expectations are tethered rather closely to our sense of what the legislature did or did not want when it enacted these policies. Entrenchment is rendered meaningful by its connection to the will of Congress (or, to put the point in terms that Eskridge and Ferejohn would find more acceptable, the objectives of Congress as it deliberates about norms and implementation techniques in the light of popular opinion and social movements).
If all of this makes sense as a resolution of these competing conceptions of administrative delegation and lawmaking, then we come to another set of dilemmas. These dilemmas concern the explanation of various external rules governing agency decisionmaking, especially administrative law. Supposing that various limits on agency discretion are produced outside of legislative prerogative, do these limits operate to entrench further these statutes, or do they do the opposite? For example, did the various interpretations of environmental and civil rights statutes in the 1970s and 1980s, each of which arguably expanded the scope of these statutes from their original text and purposes, reinforce the entrenched quality of these statutes by curtailing threats to their ability to implement widely supported public norms and values? Or did they instead reveal the disentrenchment of these policies by pushing public policy in different, and even more ambitious, directions? We raise this familiar set of questions here not to get to the bottom of an enduring, difficult debate, but rather to drill down into what exactly is meant by this idea of entrenchment as sociopolitical fact. In particular, how do the processes of administrative constitutionalism reinforce entrenchment as a necessary condition for a statute to become part of our constitutional scheme?
Perhaps the best way to capture our unease with this formulation of entrenchment in A Republic of Statutes is to describe what we see as a puzzle in the basic theory. The statutes in which the capacity for evolution and inter-institutional dialogue is most substantial are those where the main decisions of implementation devolve to administrative agencies and, therefore, in which fruitful deliberation and dialogue can flourish. In those circumstances, the key formulation of norms and objectives will more often than not be the responsibility of agencies, rather than the legislature. These kinds of statutes were common in an earlier era of American legal and political history; they are substantially less common today. Indeed, the modal statutes described by Eskridge and Ferejohn are prolix and complicated. They rely on agency implementation, but the guideposts for agencies are found in the elaborate procedural and substantive detail. If these are the superstatutes that best illustrate the nature of entrenchment, if they are the best evidence that entrenchment occurs frequently and in the manner described by the authors, then why is agency discretion—and, thereby, administrative constitutionalism—more cabined than it was before?
Three answers come to mind. First, restraints on agency discretion may reflect legislators’ strong interests in maintaining ongoing control over regulatory policymaking. The transformation in American national politics beginning in the mid-1960s may explain why congressional incentives to manage regulatory processes have grown. Moreover, the mechanisms of agency control, both ex ante and ex post, illustrate congressional capacity to engage in this ongoing management. This explanation, grounded squarely in modern themes of positive political theory, can be accommodated by the theory of superstatutory entrenchment only by stretching the theory to privilege the priorities of Congress (and to suppose that these priorities are largely the product of deliberative decisionmaking). Second, cabining administrative discretion may reflect choices made largely outside the legislative process, for instance through judicial doctrines which aim to “rescue” regulatory policymaking from political influence and internal administrative malfeasance. This model, stressed in much of the mainstream administrative law literature of the past three decades, sees a need for strong external checks, a need that is hard to square with Eskridge and Ferejohn’s picture of the administrative-political process working in a rather effective way to safeguard the public interest through institutionally interactive, deliberative means. Finally, the structure of administrative procedure, and in particular the capacity of regulatory processes to manage and facilitate change, can be seen as a multidimensional, dynamic system in which agencies are constantly monitored. This monitoring is essential to ensure that agencies implement policy in a manner that is constitutionally responsible. This formulation hits the sweet spot of the authors’ general positive and normative account.
The challenge, of course, is to develop mechanisms of control and procedural frameworks that minimize the likelihood that administrative constitutionalism will go off track. Part III of A Republic of Statutes is taken up with an elaborate depiction of disentrenchment, a predicament that occurs in circumstances of (1) agency capture; (2) agency enforcement of policies that are the least productive or otherwise “mistaken”; and/or (3) agency “tunnel vision.” While acknowledging a myriad of possible corrections, it is essential to describe with some degree of precision what correctives are most likely to stanch this disentrenchment. Congressional, judicial, and executive checks are not alternatives: they are inextricably linked (perhaps complements, as much as substitutes). How we choose among these correctives is a key aspect of the big normative picture of this so-called “constitutional horticulture.”
III. Entrenchment as Normative Value
A third and final rendering of the authors’ idea of entrenchment is that entrenchment is a promising goal to be realized through processes of implementation and interpretation; in other words, entrenchment has normative valence. The basic argument here is that superstatutes, enacted through a deliberative legislative process and implemented through a complex scheme of administrative constitutionalism, should be protected by agencies, courts, and legislators from shocks and changes. Here, deliberation is not the fact that underlies the definition of entrenchment but is the goal that is meant to be secured by due attention to qualities and characteristics of social policy. Courts should be “deliberation-inducing” and should carry out their duties in the service of entrenchment. This may, in some instances, require dynamic statutory interpretation (a result that the authors describe as “inevitable” in chapter 6); in other instances, it will require careful supervision of administrative agencies. And, as to this latter point, the case for vigorous judicial scrutiny of administrative decisionmaking—an idea apparently in tension with the sustained argument for administrative constitutionalism—rests on the very ideals of deliberation: “[T]he more robust justification for judicial overrides of agency interpretations is more institutional and dialectic than legal and interpretive.”
The big questions of whether and to what extent entrenchment should ground a normative theory of judicial review and statutory interpretation are beyond the scope of our particular analysis. We note, in quick passing, that this idea is within the grand tradition of legal process approaches to public law, approaches that draw upon particular positive analyses of the political and legal process to warrant doctrinal improvements. Such analyses are the familiar stuff of modern constitutional and administrative law scholarship. The general critiques of such theory, sharpened especially in the early 1980s when John Hart Ely’s influential theory of judicial review was in vogue and, a decade later, when public choice generated a large volume of process-perfecting theories, discuss both legitimacy and efficacy considerations. Where we put our emphasis in this Essay, however, is on the still-blurry connection between Eskridge and Ferejohn’s sketch of entrenchment as a normative value and their positive theory of superstatutes.
We ask the question this way: if superstatutes reflect the deliberative will of Congress and agencies concerned with implementing prudent, norm-furthering, durable policy, from what threats are courts to protect superstatutes? Consider the extensive analysis of the federal environmental statutes and the Rapanos litigation in chapter 6 on the “green constitution.” The basic prescriptive idea here is twofold. First, the ambiguity in the scope of both the Endangered Species Act and the Clean Water Act counsels a more dynamic approach to interpreting these statutes, one that would further the objective of ambitious environmental protection, even if at cross purposes with other important policy purposes and, arguably, the statute’s legislative history. Second, the institution principally tasked with the responsibility to get the balance right is the agency. Leaving wholly to one side whether this is a sensible way to think about statutory analyses of modern environmental statutes, it is fairly clear that whatever degree of “entrenchment” is to be found in these statutes is manufactured by the courts—in particular, the Supreme Court—through legal doctrine. Dynamic statutory interpretation and the Chevron doctrine are two famous mechanisms of judicial rulemaking. That said, there is precious little evidence that they jibe with the political interests or preferences of legislators; rather, they are means by which, in the Court’s view, sound governance can be promoted. They are the judicial equivalent to Gresham’s Law: they drive out bad policy with good protocol.
Why does the “green constitution” not implement these worthy objectives directly? The superstatutes elsewhere depicted by the authors, including social welfare and civil rights statutes, share with one another a distinct hard-wiring in both policy norms and implementation institutions. In the case of Social Security, for example, it was not simply that the passage of time resulted in the norms of the statute becoming entrenched, with agencies and courts finally going along. Rather, as the authors argue, administrative constitutionalism instantiated values that were embedded in the statute as originally forged. Hence, the processes of administrative constitutionalism were largely about ratifying these norms, managing conflict in order to obliterate partisan debate, and implementing durable legislative objectives—objectives crafted in the crucible of a deliberative process.
It is hard to see the environmental statutes of the 1970s as embodying a comparable logic. As noted earlier, NEPA was crafted as a largely proceduralist compromise. The Clean Air and Water Acts were ambitious by any measure to be sure, but it took especially expansionist interpretations in the 1970s and 1980s, led by a liberal majority on the D.C. Circuit, to get them to a sharper shade of green. Whether or not these expansionist interpretations were warranted is a subject for another day. But the process by which courts and administrators rescued these statutes from moderation, if not moribundity, is one that is best viewed as splitting apart the normative case for ambitious environmentalism from the realpolitik of the original enactment process.
Or consider, as another perspective on this point, Eskridge and Ferejohn’s analysis in the progenitor article of A Republic of Statutes, entitled simply Super-Statutes, in which they celebrate the so-called “appropriations” canon, a canon of statutory construction that instructs courts to interpret narrowly substantive statutory changes created through the appropriations process. “Appropriations laws,” they argued, “perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies.” As we have argued elsewhere, the appropriations canon, articulated first in Tennessee Valley Authority v. Hill, rests on a view of legislative deliberation that does not square with either the facts of legislative decisionmaking or a compelling theory of democratic lawmaking. Legislators deliberate rather extensively during the appropriations process. Indeed, the ability of legislators to look over policy horizontally (that is, to compare and contrast current policy in light of other, unrelated policies before them in the annual appropriations process) and vertically (that is, to consider a particular policy in light of what has transpired with that same policy between enactment and the present) should give us more confidence that the best balance will be struck during appropriations rather than within the episodic process of “ordinary” lawmaking. Furthermore, appropriations decisionmaking is, even Eskridge and Ferejohn’s own theory, congruent with most aspects of administrative constitutionalism. It is institutionally interactive, dynamic, and subject to deep reflection by a large cluster of lawmakers on the relevant committees. Our point is certainly not that the process is apolitical; it is that the nature and scope of this very political process is well suited to accommodating the appropriate combination of considerations and issues that Eskridge and Ferejohn elsewhere valorize.
In sum, the idea of entrenchment as essentially a normative value can have real appeal as a means of improving lawmaking and thereby facilitating a new schema of constitutionalism. But this value must, as the authors would doubtlessly agree, be anchored in a coherent positive theory of American politics. Moreover, it is defensible only on the grounds that this positive theory reveals serious defects in our political system, defects that can credibly be cured by certain mechanisms of judicial and administrative change. As they sketch with care our political structure, it remains fuzzy what are, in particular, the defects that cry out for systematic response. In the end, is the “small ‘c’” constitutionalism framed by Eskridge and Ferejohn a dynamic political process that we ought to celebrate or fear?
The policy case studies in the last part of A Republic of Statutes leave us with a decidedly mixed message. The description of the monetary constitution and administrative experimentation illustrates the yin and yang of policymaking in the shadow of fiscal shocks and strain and, likewise, competing theoretical and empirical visions of our financial predicaments. The clock runs out, of course, on this analysis, but one wonders whether the experience of just the past six months sheds important light on the incapacities of the American “small ‘c’” constitutional system to manage fiscal predicaments without reliance on broad, “Large ‘C’” constitutional changes. The Dodd-Frank financial reform legislation, for example, was in the end a messy, highly flawed set of compromises crafted in a charged, contentious political process—a process hopelessly clouded by an impending election. A late summer 2010 New Yorker profile describing in detail the shrinking role of Paul Volcker and prudent economists in the Obama administration in the negotiations of the final bill illustrates the lackluster qualities of deliberation in a process that was palpably partisan. To be sure, “Large ‘C’” constitutionalism is no panacea, but one wonders whether a sustained reflection on the contemporary policy negotiations over our monetary future—and the looming fiscal tsunami more generally—would chasten Eskridge and Ferejohn when one considers how efficacious the republic of statutes has been in managing this policy mess.
Likewise, the ongoing, important struggle over LGBT rights, and in particular same-sex marriage equality, makes us question whether processes of administrative constitutionalism at the federal level can satisfactorily resolve underlying disputes. Eskridge and Ferejohn caution that national institutions and, in particular, the federal courts should not be entrusted with the final policy discretion to resolve the currently raging dispute over same-sex marriage. This advice seems wise to us. The risk of blowblack from activist judicial decisions is considerable. Moreover, federal intervention in the absence of a clear majority support nationally for the result reached could create its own series of problems. Indeed, both of these risks are addressed directly by Eskridge and Ferejohn. However, in making the case against federal intervention in this particular area, they may well be weakening the larger case for federalization of social policy. After all, the percolation of the issue of same-sex marriage in the state political processes seems more likely to accomplish salutary results than a full-court press at the federal level. By contrast, the republic of statutes has been a troubling republic for gay and lesbian Americans, and thus this policy domain seems to raise serious questions about the capacity of the national political process to deal with rapid social change and unpopular minorities.
As an admirable—indeed historic—effort at big-picture legal theory, A Republic of Statutes stops short of offering a general, compelling theory of democracy to support its claims on behalf of a new American constitutionalism. Preoccupation with the countermajoritarian difficulty is defended by many legal scholars on the grounds that the usual forms of representative lawmaking jibe with simple theories of democracy, and thus the choice by unelected judges to eviscerate the fruits of such lawmaking can be seen as flatly undemocratic. The thinness of these accounts and the plausible, attractive picture of democratic constitutionalism to which A Republic of Statutes is in debt bring us back squarely to the enduring question: what is democracy? The central idea of entrenchment helps illuminate but does not yet answer this question. Additional work in the vein marked ably by Eskridge and Ferejohn promises much, however, by way of helpful illumination.
Mathew D. McCubbins is Provost’s Professor of Business, Law & Political Economy, University of Southern California, Marshall School of Business, Gould School of Law, and Department of Political Science. Daniel B. Rodriguez is Minerva House Drysdale Regents Chair in Law, University of Texas School of Law; Stephen and Barbara Friedman Visiting Professor, Columbia Law School (Spring 2011).
Preferred citation: Mathew D. McCubbins & Daniel B. Rodriguez, Superstatutory Entrenchment: A Positive and Normative Interrogatory, 120 Yale L.J. Online 387 (2011), http://yalelawjournal.org/forum/superstaturoty-entenchment-a-positive-and-normative-interrogatory.