Judicial Review of Congressional Factfinding

Harvard Law Review, December 2008 | Go to article overview

Judicial Review of Congressional Factfinding


I. INTRODUCTION

Although judicial review still has its challengers, (1) their critiques have largely focused on the practice itself. Less prevalent in the literature, although certainly no less of a component of judicial review, is sustained treatment of the measure of deference owed to congressional factfinding. (2) That is, where constitutional doctrines are predicated on open, fact-dependent rules of decision, can the Supreme Court, consistent with its constitutional authority, independently weigh congressional evidence? To the extent that the Court refuses to do so, congressional factfinding becomes outcome-determinative. Historically, the Court has given deference to such findings, contenting itself with answering only the procedural question of whether Congress has presented sufficient facts. (3) Such deference has recently waned, however, as the Court has increasingly asserted, and broadened, its Cooper v. Aaron (4) prerogative to be the supreme expositor of the Constitution. (5) Underlying this shift is a desire to ensure that the courts retain final authority to define the meaning of the Constitution by minimizing the outcome-determinative effects of congressional factfinding. (6)

The Court's lack of solicitousness to congressional factfinding is indefensible on both constitutional and prudential grounds; indeed, insofar as the question of proper deference to Congress is the handmaiden of a larger separation of powers concern regarding the proper constitutional scope of congressional power, (7) the Court's attitude does not square with its current separation of powers jurisprudence. The Court's separation of powers decisions not only preclude one branch from arrogating power to itself, but also recognize a limitation on the judiciary's competence to effectively police some interbranch boundaries. (8) Viewed against this backdrop, the Court's lack of deference to congressional factfinding is troubling: From the nonarrogation perspective, not only is deference the historical norm, but the Constitution also assigns to Congress the factfinding role. (9) From the institutional competence perspective, the legislature's superior capacity to collect evidence--stemming from its committee system, larger staffs, and research arms--gives it a comparative advantage over the judiciary in the generalized factfinding that informs legislation. (10) Prudentially, not only does judicial review of congressional factfinding undermine Congress's prerogatives and thus democracy, but the Court can also rely on other mechanisms to limit the outcome-determinativeness of factfinding. Given this foundation, this Note argues that courts should always defer to congressional factfinding.

Part II of this Note summarizes the history of the Court's treatment of congressional factfinding, revealing that the Court's current belief that factual findings are subject to judicial review is inconsistent with historical practice. Part III examines the constitutional case for deference in two parts: First, it argues that nondeference is incompatible with the Court's current separation of powers jurisprudence. Second, it draws a parallel to the Court's treatment of enrolled bills to show that reweighing congressional factfinding conflicts with general separation of powers values. Part IV engages the prudential argument, contending that there are process and structure values that deference protects. Moreover, it explains how, insofar as the Court wishes to limit the outcome-determinativeness of congressional factfinding, both the Court itself and the political process can reach that goal without trampling on separation of powers values. Part V concludes.

II. MAPPING THE SUPREME COURT'S CURRENT TREATMENT OF CONGRESSIONAL FACTFINDING

The Court has historically deferred to congressional factfinding, as is most evident in the Court's Commerce Clause jurisprudence and Fourteenth Amendment section 5 jurisprudence. …

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