Chad Squitieri (Catholic University Columbus School of Law) has posted Congress in the Mouth of a Lawyer, 78 Ala. L. Rev. __ (forthcoming) on SSRN. Here is the abstract:
It is common to loosely speak of “Congress” as making federal law—or what the Constitution refers to as the “supreme Law of the Land.” But what, precisely, do we mean when we speak of “Congress” as lawmaker? One might be tempted to answer that those references to “Congress” refer to the House and Senate alone. And in many other contexts, that simple definition is (of course) legally accurate. But when we think more carefully about references to “Congress” making law, it becomes clear that the simple definition will not do. That is because the Constitution does not permit the House and Senate to make law alone—those two chambers must instead make law in concert with a third actor: the President. The situation is thus reminiscent of that in England, where the constitutional theorist A.V. Dicey explained that “Parliament means, in the mouth of a lawyer . . . the King, the House of Lords, and the House of Commons.”
This Article argues that, like in England where the supreme law of the land is made by “Parliament” (meaning all three institutions), the supreme law of the United States is made by “Congress” (meaning the House, Senate, and the President). Of course, in formal terms, the President is not actually a member of Congress (although the Vice President is). But informal references to “Congress” as lawmaker are not themselves intended to be legally precise. Instead, those references are best understood as implicit references to a broader, multi-branch “Congress” that includes the President. This Article elucidates those implicit references to the multi-branch “Congress” and explains why failing to make those implicit references explicit has led to substantial problems in the field of statutory interpretation.
Highly recommended!
Download it while it’s hot!
To receive a daily summary of posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum