The latest issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 2) has several articles of originalist interest, most notably Robert Natelson, The Founders' Origination Clause and Implications forthe Affordable Care Act. Here is the abstract:
This Article is the first comprehensive examination of the original legal force of the Constitution’s Origination Clause, drawing not merely on the records of the 1787–90 constitutional debates, but on Founding-Era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate’s amendment power. For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to acquire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a Senate-originated “tax.” The Article concludes that this “tax” was a valid Senate amendment to a House-adopted revenue bill. The Article also concludes, however, that the amendments that added the PPACA’s regulatory provisions and appropriations were outside the Senate’s amendment power.
Also, two interesting student notes:
First, Textualism and the Presumption of Reasonable Drafting by Cory R. Liu. Here is its conclusion:
Textualists have described their approach to statutory interpretation as the discernment of what a reasonable reader, or what a median legislator, would understand the statutory text to mean. This description of textualism is problematic because empirical evidence suggests that textualist interpretive techniques, such as semantic canons and structural analysis, are not reliable approximations of how ordinary legislators understand statutes. Furthermore, the reasonable reader account of textualism fails to convey the difference between textualism and purposivism. Textualists should abandon the reasonable reader framework and replace it with the reasonable drafter framework, which asks what an objectively reasonable person would have intended the statutory text to mean. Textualists should not fear the label of “intentionalist,” and indeed, they should embrace it. Adherence to legislative intent is the cornerstone of the faithful agent vision of the judicial role. What distinguishes textualists from purposivists is that textualists look to the statutory text for legislative intent while employing a presumption of reasonable drafting. The presumption of reasonable drafting is the unique way in which textualists seek to promote judicial restraint and respect for the democratic process.
Second, Liberty Requires Accountability: Checking Delegations to Independent Agencies, by David Casazza. An excerpt:
The Court’s neglect of the nondelegation doctrine and its post-Humphrey’s Executor removal power jurisprudence both independently raise serious threats to the political accountability of the rulemaking process. In combination they do even greater damage to the Constitution’s foundational principles of self-government. Together they allow the establishment of a fourth branch of government that is unaccountable to the people yet wields enormous regulatory power over them. For those who find this situation unacceptable, a solution must be found. Three will be considered below. First, we will consider whether courts should refuse to give Chevron deference to independent agencies and permit delegation to independent agencies only after applying a higher standard of statutory direction than J.W. Hampton’s “intelligible principle” test. Second, we will consider whether the President should test the boundaries of “for cause” removal to restore executive oversight of regulatory agencies. Finally, we will consider whether courts should impose on Congress an exclusive choice of either delegating policymaking authority (that is the power to promulgate rules and conduct adjudications) to an agency or insulating the agency from executive oversight.
Posted at 6:05 AM