Although we have made substantial progress since the late nineteenth century in supervising the process by which sausages are made, we have failed to make any significant progress in supervising the procedures used by legislatures. Stephen Gardbaum recommends that we remedy this situation. He argues that courts should use the Due Process Clause to review the procedures by which laws are enacted, as well as reviewing the substance of the enactments. His title indicates that he is building on the path-breaking article by Hans Linde, Due Process of Lawmaking, published more than forty years ago. Professor Gardbaum breathes new life into the idea and invites us to think about a promising and innovative means of improving our much-troubled system of government.
Procedural due process, Professor Gardbaum argues, demands that all branches of government–legislative, executive and judicial–follow constitutional decision-making procedures in addition to reaching constitutionally acceptable results. The applicability of this principle to executive and judicial decisions is unchallenged, but the prevailing view is that it does not apply to legislation. Perhaps this is because legislation is promulgated by popularly-elected officials and thus regarded, contrary to Burke, as an act of will rather than an act of reason. Professor Gardbaum doesn’t challenge this view; his point is that actions carrying out the will of the legislators can also suffer from procedural defects that demand attention and correction. He offers two examples: if legislators decide between alternative proposals by flipping a coin, and if they enact legislation in return for campaign contributions. These examples reflect two general categories of procedural defects: legislating without sufficient reasons and legislating for the wrong reasons. Professor Gardbaum refers to the first category at several points. It includes a failure to state the rationale for a statute, the failure to provide any empirical basis for it, or the failure to subject it to open consideration and debate. But the primary focus of his article is on the second category–legislating on the basis of the wrong reasons, and specifically ones that are wrong because they are corrupt.
Professor Gardbaum’s primary example is the Trump Administration’s tax reform act (Tax Cuts and Jobs Act 2017). Its obeisance to the demands of the Republican Party’s wealthy contributors, which is obvious on its face and confirmed by naively self-revealing statements by its sponsors, demonstrate its essentially corrupt character. The Hobbs Act declares that legislators who take action in return for money–a quid pro quo, according to the now-notorious terminology–are guilty of a criminal offense. It is also an offense, Professor Gardbaum argues, for a majority of legislators to enact a law that represents a similar pay off to wealthy contributors. He notes that the Supreme Court has largely eviscerated the application of the Hobbs Act to legislators, most notably McCormick v. United States 1, which precludes conviction unless the legislator’s action is based on an explicit promise, and United States v. Johnson 2, which precludes conviction on the basis of a legislator’s votes on proposed legislation. But the application of the Due Process Clause to legislative procedures does not depend on any demonstration of individual wrongdoing. Its focus, rather, is on the legislation itself. In this context, the corrupt behavior of individual legislators may provide evidence of the legislature’s general violation of due process, but it is not the essence of the violation.
In addition to reviving the general idea that the concept of due process should apply to lawmaking, Professor Gardbaum argues for a means of implementing the concept, which is through judicial review. Hans Linde shied away from this solution, and it has since been ignored or rejected by most legal scholars with the exception of several thoughtful articles by Itai Bar-Simon-Tov. Professor Gardbaum argues that an action declaring that legislation like the Trump tax reform is void under the Due Process Clause would be both less problematic and more effective than prosecutions under the Hobbs Act. It would be less problematic because no specific person would be punished, so that the concern for fairness to individuals that may have motivated the Supreme Court decisions in McCormick and Johnson does not apply. It would be more effective because the conviction of an offending legislator leaves the offending law in place. More generally, criminal prosecution is only viable for dealing with outliers from a general pattern of social or governmental behavior. Procedural due process review can correct a general pattern, as it has for many executive or judicial practices.
This admirably short article does not attempt to refute all the objections likely to spring to the mind of legally-trained readers. But Professor Gardbaum delineates both an empirical and a theoretical answer to some of the most obvious concerns. He points out that courts in several other democratic regimes, including Colombia, Israel and South Africa, have struck down legislation on procedural grounds, thus demonstrating that the idea is not presumptively impractical. With respect to theory, he argues that judicial review of legislative procedures does not violate the separation of powers doctrine. Given the countervailing, and arguably more important principle of checks and balances, separation of powers is best understood as preventing one branch from taking over the assigned responsibilities of another or disabling another from fulfilling those responsibilities. Judicial review of legislative procedures would not create this problem; far from legislating, the courts would only be doing what they do on the basis of many other doctrines, which is to strike down legislation that violates the doctrine’s underlying principles. Consistent with checks and balances, due process review of legislative procedures would provide much-needed supervision over truly offensive practices that, according to the classic Footnote Four argument, the subject institution is disabled from remedying on its own. Professor Gardbaum, again in the interest of brevity, does not delineate the contours of a due process doctrine to provide this supervision. Instead, he invites us to think about it, and alerts us to the all-too-apparent defects in our governmental system that should motivate us to do so.