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Article Excerpt
ARTICLE CONTENTS
INTRODUCTION I. THE THEORY OF ENACTMENT COST MANIPULATION A. The Inevitability of Balancing and the Problem of Uncertainty B. Enactment Costs and the Implementation of the Constitution C. The Theory's Domain 1. Preferences 2. Information 3. The Social Costs of Enactment Costs 4. Implementability II. THE PRACTICE OF ENACTMENT COST MANIPULATION A. Expenditure of Material Resources 1. Constitutional Liability Rules 2. Procedural Safeguards B. Statutory Drafting 1. Narrow Tailoring 2. Interpretive Presumptions and Clear Statement Rules C. Legislative History 1. Rewarding "Good" Legislative History: Analysis and Explanation Requirements 2. Penalizing "Bad" Legislative History: Impermissible Statements of Government Motive D. Doctrinal Uncertainty CONCLUSION
INTRODUCTION
In the most famous sentence in all of American constitutional jurisprudence, Chief Justice Marshall declared, "It is emphatically the province and duty of the judicial department to say what the law is." (1) Though susceptible of multiple readings, Justice Marshall's statement succinctly captures a particular view of how constitutional judicial review operates. According to this view, pervasive in much legal scholarship and commentary, some set of government actions is prohibited by "the law"; it is the duty of the courts to identify and to police the boundaries of that set; and anything that falls outside of the judicially defined set of prohibited actions is permissible. (2) This Article contends that the focus on direct judicial assessment and enforcement of constitutional limits obscures important ways in which courts implement constitutional guarantees indirectly. Specifically, I argue that courts often can, do, and should craft doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies, rather than attempting to designate certain government actions, or categories of government actions, as permissible or impermissible. (3)
The advantage of this sort of indirect strategy, as compared with a categorical approach that seeks to classify government actions as lawful or unlawful, is that it may implement a kind of implicit balancing of interests. In that balancing, the damage to constitutional values is weighed against the strength of the government's interest in the challenged policy more effectively than under a direct judicial balancing test. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher.
In a sense, this is a kind of constitutional law analogue to the well-known concept of "efficient breach" in contract law. (4) It would be possible for courts to fashion contract law doctrines--presumptions, balancing tests, and the like--to help them determine which contractual provisions ought to be enforceable under what conditions, and to enforce these determinations through injunctions. The norm in contract law, however, is to compel the breaching party to pay damages. (5) The logic is that the contracting parties usually have better information than the court about the relative economic values of breach and performance, so a liability rule is more likely to prevent inefficient breaches, while allowing efficient breaches. In a similar fashion, constitutional doctrines that raise the costs associated with problematic government enactments may help deter policies that are "inefficient"-in the broad sense of failing a hypothetical ideal constitutional balancing test--while allowing what might be thought of as "efficient breaches" of constitutional rights. (6)
This Article has two main objectives. Part I explains, as a theoretical matter, how, why, and under what conditions judicial doctrines that manipulate enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests at stake. (7) Part II argues that the federal judiciary already has the capacity to fashion doctrines that function in this way; indeed, current doctrine affects legislative enactment costs more than has generally been appreciated. Although manipulation of legislative enactment costs may not be the intended or primary effect of any doctrine in constitutional law, it is an important function of many such doctrines. Furthermore, some doctrines might be justified as means of manipulating legislative enactment costs, even if this was never their intended function.
Understanding both the theory of enactment cost manipulation and the ways in which existing constitutional doctrines may influence legislative enactment costs may be useful in evaluating the advantages and disadvantages of these doctrines, as well as in suggesting alternative doctrinal strategies for implementing the Constitution. By thinking more systematically about these issues, one may be able to craft doctrines that more effectively leverage the advantages associated with an enactment cost strategy while minimizing the inevitable shortcomings of such an approach.
I. THE THEORY OF ENACTMENT COST MANIPULATION
A. The Inevitability of Balancing and the Problem of Uncertainty
Constitutional review of government action pervasively, perhaps inevitably, requires some form of balancing. (8) In virtually all hard constitutional cases, some privileged right, interest, or entitlement comes into conflict with a normatively attractive competing government interest. (9) The need to balance constitutional values against competing interests is apparent in the text of some constitutional clauses, such as the Fourth Amendment's prohibition on "unreasonable" searches and seizures and the Fifth and Fourteenth Amendments' requirement of "due" process. Other clauses, such as the First Amendment's Speech and Religion Clauses and the Fourteenth Amendment's Equal Protection Clause, appear to embody more absolute prohibitions. But in practice, when defining the underlying right that is protected "absolutely" and in specifying the remedies available, courts have recognized the need to balance competing values and interests. (10)
This is not to assert that all constitutional doctrines involve some form of case-by-case, totality-of-the-circumstances balancing, nor that they should. As an empirical matter, pure balancing tests are relatively rare (though certainly not absent) in constitutional law." As a normative matter, scholars of various ideological stripes have argued against the wisdom of doctrines that call for judges to engage in all-things-considered, case-specific balancing. (12) Yet in those areas in which courts reject case-by-case "retail" balancing of constitutional values and competing interests, they typically engage in a kind of "wholesale" balancing when formulating or refining their doctrinal approaches. (13) For example, a judicial decision that a category of government action is presumptively lawful or unlawful, or that certain types of controversy are nonjusticiable, implicitly (and sometimes explicitly) rests on a judgment about how to strike the appropriate balance between some constitutionally protected value and the government's interest in advancing legitimate public policy objectives. (14) Similarly, when courts decide that certain categories of government action will be subject to relatively forgiving "rational basis" review, while other categories will have to meet a more demanding level of scrutiny, these classification decisions typically involve probabilistic judgments about the likely costs and benefits of actions within the specified categories, (15) Thus, rejection of retail balancing in individual cases generally implies wholesale balancing in the creation of doctrinal tests to implement constitutional guarantees.
To assert that constitutional adjudication and doctrinal formulation require balancing constitutional values against legitimate competing interests is to frame the problem faced by the courts, not to resolve it. How are courts to strike the appropriate balance? How are they to devise doctrinal frameworks that maximize the chances that an appropriate balance will be struck? This problem is especially acute given that courts face two well-known institutional limitations. First, the federal judiciary's lack of direct electoral accountability raises questions about the extent to which courts may make value-laden judgments about the validity and relative importance of alleged constitutional rights and competing government interests. Alexander Bickel famously dubbed this legitimacy problem the "countermajoritarian difficulty," (16) and constitutional theorists have debated it ad nauseum for a half-century since. (17)
Even if one brackets or rejects the legitimacy objection to judicial review, courts still face a second institutional problem: their comparative disadvantage in gathering and evaluating information about the connection between policies and outcomes. It is not enough to assign normative weight to constitutionally protected values and competing government interests in the abstract. One must also assess the likely consequences of the challenged government action for those values and interests. (18) Yet judges may not be especially good at malting these sorts of empirical or predictive judgments, and that creates problems independent of the normative legitimacy of countermajoritarian judicial review. (19)
To illustrate the distinction between the legitimacy problem and the information problem, consider a stylized example. Imagine that a speaker in a public park is delivering a racist rant to a large crowd, and the police detain him pursuant to a statute that proscribes speech that is likely to incite racial violence. Now suppose (unrealistically) that the court reviewing the case could be certain that the probability that this speech (or this type of speech) would actually cause a race riot is fifteen percent. The example thus assumes away the court's information problem. The legitimacy problem remains, however. If the court were to hold that the statute is unconstitutional, one might reasonably ask why an unelected court is entitled to decide that a fifteen percent chance of a race riot is not high enough to prohibit inflammatory speech when the democratically elected legislature reached a different conclusion. Responding to this challenge is especially difficult if we concede that there is some point at which the risk of violence is so great that prohibiting the speech would be justified. (Imagine, again unrealistically, that the court knew with absolute certainty that this speech, if allowed, would trigger a city-wide race riot in which hundreds would die.) If we make that concession, then we have admitted the need for some sort of balancing. Yet how confident can we be that the court will strike the balance at the right point? Should a fifteen percent risk of a riot be sufficient to restrain speech? Five percent? Thirty percent? There are good reasons to worry about whether courts will assign the correct normative weight to the competing interests.
Now, consider a variant on the same example in which the legitimacy problem is assumed away but the information problem is present. Suppose that the court both would and should find the hypothetical statute unconstitutional as applied if, but only if, the probability that the targeted speech would incite a riot is less than twenty percent. That is, the government interest in public safety outweighs the speaker's autonomy and self-expression interests only if the probability of inciting a riot is greater than twenty percent. Even if there is no normative legitimacy problem with allowing the court to enforce that principle, the court is likely to be quite uncertain as to the true probability that the speech in question might cause a riot. Furthermore, even though the government, the defendant, and other interested parties might have better information on this point, they have an incentive to exaggerate in whichever direction favors their interests: the defendant's attorney will insist that the probability of this speech inciting violence was very low, while the government will insist that it was very high. The court will need to come up with some way to sift through the competing arguments and evidence and make the judgment that minimizes the aggregate error costs.
This simple pair of examples illustrates the conceptual distinction between concerns about courts' ability to correctly assign normative weight to constitutional values and competing government interests, and limitations on courts' capacity to evaluate the degree to which those values and interests are implicated by a given government action. In real life, the distinction is more elusive, and the degree to which a judicial decision or doctrine reflects a court's normative judgment about the relative importance of different interests, rather than an empirical prediction about the probable effect of the challenged policy on the relevant values, may not always be clear. (20) Nonetheless, there is an important conceptual distinction between the objection that courts are unqualified to make value determinations (the legitimacy problem) and the objection that they are unqualified to assess (or predict) relevant facts (the information problem).
That distinction is important for purposes of this Article because the focus here is primarily on doctrinal solutions to the judiciary's information problem. As in the second version of the hypothetical hate speech case, the Article assumes away concerns about whether the courts assign the appropriate level of normative significance to various rights, values, and interests. This is not because these concerns are unimportant, nor because the judiciary's ability to make contested normative value judgments is unproblematic. But this Article's central arguments principally concern the doctrinal strategies that courts can employ to ameliorate their informational limitations. In exploring that issue, bracketing the legitimacy objection simplifies the analysis and exposition.
B. Enactment Costs and the Implementation of the Constitution
This Article's central claim is that judicial doctrines can raise the costs to legislators (21) of enacting a given policy, thereby increasing the probability that policies subsequently enacted would satisfy a hypothetical ideal balancing test of constitutional values against competing government interests. The argument is not simply that judicial doctrines can reduce the total quantity of constitutionally problematic legislation by imposing an implicit tax on such legislation, though that is certainly one effect of doctrines that raise legislative enactment costs. Rather, I advance the stronger claim that judicial imposition of additional enactment costs on legislatures enables courts to reduce their comparative informational disadvantage. The better-informed government decisionmakers will only be willing to act when their true interest in the policy is sufficiently strong; government exaggeration of its true interest becomes a less viable strategy. Thus, courts may be able to approximate indirectly the outcomes that would be achieved by an ideal (but practically unimplementable) constitutional balancing test.
The idea can be illustrated with another stylized example. Imagine that Congress is considering a statute that would advance some legitimate government interest but that would also injure some constitutional value. For concreteness, imagine a statute that would impose new regulatory obligations on Internet service providers. Proponents of the legislation justify it in terms of some legitimate public interest, such as eliminating online copyright infringement or protecting national security by blocking or monitoring the transmission of classified government information. The statute, however, may also threaten values protected by the Constitution, such as speech rights or privacy rights.
Securing passage of the statute requires effort on the part of supportive legislators and interest groups. This is true even for legislative proposals that are relatively simple and uncontroversial, and it is especially true for more complex or divisive proposals. The costs to legislators and interest groups of drafting and enacting legislation, other than the disadvantages of the legislation itself, are primarily opportunity costs. Legislators have limited time, staff, and political capital to allocate to a variety of activities, including not only legislation but also oversight, constituency service, campaigning, and public relations activities. A rational legislator will allocate her limited resources among these activities so as to maximize her ability to achieve her objectives, which will typically include reelection or career advancement, ideological or policy goals, prestige, and leisure. (22) Therefore, when a legislator considers whether to work toward the enactment of a given bill, such as the hypothetical Internet regulation statute, she will consider not only how passage of that statute would benefit her, but also the opportunity costs of devoting resources to that bill rather than to other activities. Interest groups typically face a similar kind of tradeoff: effort devoted to securing the passage of any one legislative proposal is effort that cannot be devoted to some other valued activity. Legislation will be enacted only if a sufficient number of influential players believe that the net political and policy benefits associated with the legislation outweigh the opportunity costs of devoting sufficient effort to ensure passage.
Suppose that the benefits to legislators and interest groups of passing the hypothetical Internet regulation statute exceed the costs, so that the statute is enacted into law. The statute might then be challenged on constitutional grounds. If a court composed of omniscient judges were able to apply an ideal constitutional balancing test, it would uphold the statute if and only if the legitimate government interests in enacting the statute (such as fostering innovation or defending against threats to national security) outweigh the injury to constitutionally significant values (such as speech and privacy). (23) Alternatively, if the court were confident that the legislature would always fully internalize the costs and benefits of its decisions, then judicial review would be superfluous, because the court, even if not omniscient, would always uphold the decisions of the wise and benevolent legislature.
Problems arise, however, if the judiciary has incomplete information and the legislature has misaligned incentives." (24) The legislature may undervalue the constitutional interests at stake-or, equivalently, it may overvalue the competing benefits. In other words, the private benefit of enacting the statute may exceed the private enactment cost for a sufficient number of legislators and interest groups, even though the social benefit of the statute is less than its social cost. When this is the case, the legislature may favor statutes that would fail the hypothetical ideal balancing test. If the reviewing court were omniscient, or at least had information as good as the legislature's about the statute's likely effects, the court could still constrain the legislature through the application of the ideal constitutional balancing test. But if the court's information about the issues at stake is not as good as the legislature's, the court's problem is much more difficult.
To illustrate, assume that the court can confidently assess the degree to which the hypothetical Internet regulation statute impinges on constitutionally privileged speech and privacy rights, but the court's information about the statute's relationship to competing government interests-intellectual property protection, national security, or what have you-is significantly worse than the legislature's. To make the information problem as stark as possible, albeit at the price of some descriptive realism, assume that the legislature (considered as a unitary actor (25)) knows the public benefit of the statute with certainty even though it may undervalue the constitutional interests at stake, while the reviewing court, despite having exactly the right values, can only make a rough estimate of the statute's impact on legitimate public interests.
If the reviewing court had to rely only on its own information, it would have to decide whether the expected public benefit of the statute-given the court's incomplete information-is greater or less than the cost to constitutional values. (26) The court could apply a kind of retail balancing test or, alternatively, some other doctrinal formula that the court believes will achieve an appropriate constitutional balance at the wholesale level. But these approaches entail substantial error costs. The court's uninformed application of the relevant test may prevent the enactment of socially desirable, constitutionally justifiable legislation. After all, the true social benefit of the statute may be much larger than the court's estimate of the expected benefit. On the other hand, the court may end up approving a statute that inflicts an unjustifiably large injury to constitutionally protected values, if it turns out that the actual benefit of the statute is much lower than the expected benefit.
This dilemma is a well-known problem with judicial attempts to balance constitutional and other public values, whether at the retail level or the wholesale level. The question therefore arises whether there are better ways that the court can implement constitutional values, instead of a direct but uninformed inquiry into the effect of a challenged statute on constitutionally relevant values and interests. Is it possible for the court to establish doctrinal mechanisms that induce outcomes that more closely approximate those of a hypothetical ideal constitutional balancing test?
There are a number of ways that the courts might attempt to achieve such a result. One strategy targets the problem of misaligned legislative incentives, developing doctrines designed to induce greater legislative deliberation or to limit the influence of parochial interest groups. (27) Another approach is to establish doctrinal tests that elicit more accurate and credible information from the legislature about the public interests at stake, for example by demanding certain types of evidentiary showings or information disclosure. (28) An alternative or complementary strategy, and the one on which this Article focuses, is to formulate doctrines that establish indirect mechanisms that credibly transfer information from the legislature to the court. One such approach is to increase the costs to the legislature of enacting constitutionally problematic legislation.
To see how this strategy could work, consider a case in which the legislature, though better informed than the court, systematically undervalues constitutionally privileged interests, or overvalues competing government objectives. Under this assumption, the private cost to legislators of enacting a given statute--the opportunity costs of enactment, plus the other perceived disadvantages of the law--may be smaller than the statute's social costs, including its impact on constitutional values. If, however, the opportunity cost of enacting the statute were to increase to the point at which the statute's private cost to a decisive legislative coalition were equal to the true social cost, then the legislature would never enact a statute with negative net social value. The legislature, however, would still pass the legislation if the private benefit to a decisive coalition were sufficiently high. Enactment costs thus function as a screening device, deterring legislative action with low private benefit to the legislature.
Because all legislative activity entails opportunity costs, some screening will take place even without judicial intervention. Furthermore, the legislative process laid down in Article I, Section 7 of the Constitution--which requires the assent of both houses of Congress plus the President, or two-thirds of each house if the President is in opposition-might itself be considered a device for raising the enactment costs of legislation, thereby helping to ensure that any legislation that makes it through this process is perceived by a sufficiently large number of legislators and interest groups not just as having some positive value, but as having substantial positive value. (29) If the existing screen is not sufficiently powerful to filter out enough undesirable statutes, though, the courts can try to find ways to make the screen more demanding. One way for the courts to do this is by developing doctrines that raise enactment costs for those statutes for which the legislature is likely to overvalue the statute's benefits relative to its costs. The court's manipulation of legislative enactment costs enables it to extract more information from the legislature about the true public benefit of the statute in question. Even if the court cannot verify the government's assertions regarding the legislation's benefits, the magnitude of the enactment cost forces the government to credibly reveal some of its private information indirectly through its behavior. Judicial doctrines that raise the government's enactment cost thus increase the credibility of the government's assertion that it has a sufficiently strong interest in the legislation to justify the injury to constitutionally privileged values.
C. The Theory's Domain
In order for judicial doctrine to perform the hypothesized screening function described in the preceding section, four critical assumptions must hold. First, the relevant government policymakers' private interest in enacting a policy must be positively correlated (in expectation) with some normatively legitimate social interest, even though the government's interest in enacting the policy is systematically too strong. Second, the enacting legislative coalition must have better information about the expected impact of the policy than does the reviewing court, but the court must have reasonably good information about the enacting coalition's policy preferences. Third, the court must be able to fashion doctrines that increase the private opportunity cost of enactment for the decisive legislative coalition by more than these doctrines increase the social opportunity cost of enactment. Fourth, judicial doctrine must be capable of imposing enactment costs that are large enough to decrease the government's willingness to pursue the targeted class of policy decisions.
This Article does not claim that all of these assumptions always hold. Rather, the claim--more modest, but perhaps still controversial--is that they hold sufficiently often that a functionalist theory of judicial doctrine that focuses on manipulation of enactment costs is important to understanding and assessing the operation of real-world constitutional review. In order to better understand both the theory and the limits to its domain, I will elaborate on each of these four key assumptions.
1. Preferences
The first critical assumption is that the government's interest in a given policy is likely to be positively correlated with the true social interest in that policy, but also likely to be too strong. This assumption will hold when the government systematically undervalues constitutionally privileged interests, but not when the government is excessively hostile to those interests.
The critical distinction between undervaluation and hostility can be illustrated in the context of the Equal Protection Clause's restriction of race-based discrimination. Bracket for the moment debates about the legitimacy of distilling purposes or values from constitutional texts, as well as controversies about the scope and purpose of the Equal Protection Clause. Let us assume, for the sake of...
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