Temporal Limits on Lawmaking Powers

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A republic derives its power from the people, and as james madison declared in the federalist #39 and #53, the persons elected to administer it hold office only "for a limited period" and enjoy no license to extend the length of their terms. Although in contemporary America such a concept seems almost beyond dispute, Madison's pronouncement marked a radical departure from English tradition.

By the Triennial Act of 1694 the English Parliament limited the term of Parliament to three years. In 1716, however, the members of Parliament, in their final year of service and concerned that elections might be perilous to the ruling party, repealed the Triennial Act. In its place they enacted the Septennial Act, by which the legal duration of the sitting Parliament was immediately extended to seven years. The powers of the incumbent members of the House of Commons were thus prolonged by four years. Although the English might have regarded this exercise of legislative authority as contemptuous or extravagant, they did not consider it ultra vires in a system constructed on the concept of parliamentary supremacy.

The United States Constitution rejects the cornerstone of legislative supremacy. The recognition of the citizenry as an external force from which all power originates severed the umbilical connection with English tradition. The Preamble's opening phrase, "We the people," is more than flashy prose. The legislators were transformed from the masters of the electorate to their servants. The people are the source of all power; the legislators are merely designated agents.

There is, as alexander hamilton pronounced in The Federalist #78, "no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void." Agency may be limited in duration as well as scope. The Framers devoted considerable attention to the appropriate length of a representative's term of office. The decision to limit the terms of the members of the house of representatives to two years was prompted by a recognition that in order to ensure liberty, government must have an immediate dependence on, and intimate sympathy with, the people. Frequent elections, warned Madison in The Federalist #53, are "the only policy by which this dependence and sympathy can be effectively secured." Although the longer six-year term for senators was a concession to the need for some continuity and stability in government, the expiration of the terms of one-third of the body every two years provides a reminder of accountability (the dependence factor) and permits infusions of new directions from the electorate (the sympathy factor) at more frequent intervals.

Just as American legislatures lack the power to extend their terms beyond those set by their constitutive documents, they may not undermine the spirit of that document by "entrenching" their legislative efforts. Each election furnishes the electorate with an opportunity to provide new directions for its representatives. The process would be reduced to an exercise in futility were newly elected representatives bound by the policy choices of a prior generation of voters. The fundamental, although often debatable, assumption of American political life—that legislative action reflects current majoritarian preferences—could be finally laid to rest if shifting majorities were unable to alter prior majoritarian preferences.

Instances of legislative entrenchment rarely are the subjects of judicial decision. To begin with, most legislators share an understanding of the temporal limits of their authority. Of equal import, successor legislators usually find ways to outflank entrenched restrictions, but if they cannot, they may simply choose to ignore their predecessors' directives, safe in the knowledge that courts are unlikely to void their efforts. Nonetheless, the prohibition against entrenchment has been at the heart of numerous congressional debates.

The cloture rule of the Senate requires the assent of a supermajority (sixty members) to terminate a filibuster. On more than eighty occasions since this rule's adoption, a majority of senators have unsuccessfully attempted to cut off debate and bring an issue to a vote. Such failures have often been followed by efforts to amend the cloture rule; but the supermajority requirement has been entrenched. Rule 32(2) of the Senate's Standing Rules explicitly mandates, "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules. " Thus, any effort to change the cloture rule may itself be blocked by a filibuster. The defenders of this entrenchment argue that because each biennial election only affects one-third of the Senate's membership, the Senate is a continuing body capable of binding itself. Periodically, senators mount constitutional attacks against Rule 32(2) on the ground that no legislative body can so limit its successors. In 1957, Vice-President richard m. nixon, the Senate's presiding officer, announced his personal opinion that a rule limiting the right of the Senate's current majority to promulgate its own rules was unconstitutional. In the end, however, Nixon and his successors have left the ultimate issue of constitutionality with the membership of the Senate itself. Numerous votes of that body have rejected Nixon's constitutional assessment. Today an overwhelming majority of the senators are of the view that the "continuous" nature of the Senate permits this narrow exception to the rule against entrenchment.

Entrenchment issues also surround much of the constitutional amending process. Thus, the binding power of legslative bodies has been at the heart of debates about (1) the power of Congress to extend time limits for ratification placed on a proposed constitutional amendment by a prior Congress; (2) the right of state legislature to rescind its predecessor's ratification vote; and (3) Congress's ability, by legislation, to establish the rules of operation for futrue constitutional conventions that might occur.

One of the few entrenchment issues to have received a judicial airing concerns the extent to which contractual commitments made by legislatures bind subsequent legislatures. The contract clause of the Constitution prohibits states from impairing the obligation of contracts. There exists no evidence, however, that the Framers intended or expected the contract clause to be applied to obligations involving the state itself. In spite of this unequivocal history, Chief Justice john marshall, in fletcher v. peck (1810), extended the reach of the contract clause to legislatively created obligations, finding it sufficient that the words of the Constitution drew no distinction between private and public contracts. The tension between Fletcher's extension of the contract clause and the temporal nature of lawmaking power was first clearly articulated by roger brooke taney during his tenure as attorney general. Legislatures, said Taney, "cannot bind the state by contract … beyond the scope of the authority granted them by their constituents." The power to limit contractually the legislative powers of successors, Taney asserted, is one that the agent cannot enjoy consistent with "the principles upon which our political institutions are founded." Even Marshall was mindful of the entrenchment implications of his interpretation. Recognizing that his reading potentially allowed legislatures to limit the power of their successors, he endeavored to draw a distinction between "general legislation" (which could not bind successor legislators) and "contracts" (which could). Marshall therefore concluded that when a law is in its nature a contract, vesting absolute rights, "a repeal of the law cannot devest those rights."

The dichotomy Marshall posited between general legislation and contracts matured in later years into a judicial understanding that at least some state action was beyond the reach of the contracting power. No body of representatives can bargain away the so-called police power of the state. Thus, in stone v. mississippi (1880), the Supreme Court sustained a legislative revocation of its predecessor's grant of a twenty-five-year charter to operate a lottery, noting that the police power must remain a continuing power to be exercised "as the special exigencies of the moment may require." This limitation ultimately proved the contract clause's undoing as the exception swallowed the rule, and the contract clause faded from the judicial scene following the 1930s.

In the 1970s the Supreme Court temporarily resurrected the specter of contractual entrenchment. New Jersey and New York issued bonds in 1962 to construct bridges and tunnels, and promised bondholders that none of the tolls pledged to secure such bonds would be used for "any railroad purpose." By 1974, the public call for increased mass transit made such a commitment unwieldy. Massive toll increases were announced. A reserve fund was established for the bondholders, but in 1974 the commitment not to spend any surplus toll money for mass transit was repealed. There was no evidence of a diminution in the value of the bonds as a result of this broken promise. Nonetheless, the Court, in united states trust co. of new york v. new jersey (1977), ruled that the state legislature had impaired the bondholders' contractual rights. Justice william j. brennan, in dissent, reminded his colleagues that "one of the fundamental premises of our popular democracy is that each generation of representatives can and will remain responsive to the needs and desires of those whom they represent." Nothing, he summed up, so jeopardized the "legitimacy of a system of government that relies on the ebbs and flow of politics to clean out the rascals than the possibility that those same rascals might perpetuate their polices simply by locking them into binding contracts." Justice Brennan may have struck a resonant chord. Since United States Trust, no legislative commitment has been enforced against a recalcitrant successor legislature. It is ordinarily in a legislature's best interest to maintain a reputation for honoring its word. On those occasions, however, when the public interest leads a legislature to abandon a prior commitment, it will be rare for courts to enforce the promise.

Julian N. Eule


Eule, Julian N. 1987 Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity. American Bar Foundation Research Journal 1987:379–459.

Hochman, Charles B. 1960 The Supreme Court and the Constitutionality of Retroactive Legislation. Harvard Law Review 73:692–727.

Kahn, Paul W. 1987 Gramm-Rudman and the Capacity of Congress to Control the Future. Hastings Constitutional Law Quarterly 13:185–231.