The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The New Bicameralism and Presentment
The executive branch proposes a rule, a district court judge can block it, then one member of the Supreme Court determines if Congress would have approved of that rule.
The Constitution establishes a very precise process by which laws can be enacted. First, a bill must be approved by one house of Congress. Second, the other house of Congress must approve the bill. Third, the President can sign the bill into law. If the bill is vetoed, Congress can override the veto. This process is known as bicameralism and presentment: two houses must pass the bill, which is then presented to the President for his signature.
This process, regrettably, has become rarer and rare. Virtually all major changes to the law occur outside the confines of the traditional form of bicameralism and presentment. Instead, there is a different three-step process.
First, the executive branch proposes a new legal regime. Maybe there is notice-and-comment rulemaking, or maybe it is bypassed. There is always good cause when the need arises. Or an agency issues some sort of non-binding guidance document that regulated entities treat as binding.
Second, after the policy is promulgated, it is challenged in favorable forums. A district court judge then decides if the rule can go into effect, or not.
Third, if the trial court blocks the rule, the case is presented to the Supreme Court. And pursuant to the major question doctrine, the Justices must determine if this is the sort of rule that Congress would have approved of.
In this regard, there is still a familiar three-step process, involving the executive branch, the lower courts, and the Supreme Court. Congress is involved in an imaginative sense, as one Justice gets to decide what Congress would have intended. If all three boxes are checked, federal laws is changed! Call it a new bicameralism and presentment.
