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For example, both lawmaking and rulemaking often now bypass the hurdles of transparency that have become familiar. Both use outside delegates for many controversial issues. Who wins and who loses from these deviations? Power inures to party leaders and the President—who wears two different, but equally powerful, hats as legislator and chief administrator. On the other hand, policy experts in committees and agencies, as well as those who favor decentralized power, may get the short end of the stick.

From a democracy perspective, the process loses transparency and public input and sometimes obfuscates accountability. But it may also gain in efficiency and productivity. Close a phenomenon elaborated on in a coauthored empirical study of congressional drafters by one of us. Until now, these two accounts mostly have been discussed in isolation and have themselves relied on fairly simplified description.

See, e. Mason L. Metzger, Agencies, Polarization, and the States, Colum. Close In contrast, we argue here that the legislative and rulemaking processes are inextricably linked, and that each set of unorthodoxies feeds into and illuminates the other.

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We also argue that it would be a return to the Schoolhouse Rock! Omnibus bills and rules are different from emergency bills and rules; both are different from unorthodox delegations; and so on. Part I expands the preexisting descriptive account by developing a new typology of these deviations and roughly surveying their scope empirically. Part II explores these connections as well as other ways in which common motivations, such as gridlock, institutional complexity, and fiscal constraints, give rise to the deviations in both branches.

The final two Parts investigate the normative and legal implications of our descriptive account. As Part III explains, these unconventional practices allow certain institutional actors to gain and lose power and offer benefits and drawbacks for social welfare and democratic legitimacy. Two brief examples will illustrate our direction. Casey, U. One goal of the Essay is simply to set the record straight.

Given that so much scholarship and legal doctrine at least purports to rely on an understanding of how Congress and the executive branch actually function, an accurate account of the modern policymaking process seems vital. Part of this inquiry is motivated by an interest in the jurisprudential foundations of statutory law. When it comes to legislation, the Court has never been consistent in its articulation of what the role of interpretive doctrine is supposed to be in the first place. Sometimes the Court tells us that its doctrines aim to reflect how Congress drafts—for instance, the rule that Congress does not write with redundancies.

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Still other applications of interpretive doctrine aim to impose on legislation external values, like federalism, that Congress might not have considered. Santa Fe Elevator Corp. Close These potential normative frameworks are often in tension in any given case. On the administrative law side, the Court has been less interested in engaging in a shared interpretive conversation with agencies and more interested in questions of accountability. Close But even there, the theoretical basis has been fuzzy, since the Court seems to measure accountability against the APA, and not against actual agency and White House practices.

One caveat at the outset is that we do not engage judicial unorthodoxies, or unorthodoxies related to agency enforcement and agency adjudications. A comprehensive study of unorthodox mechanisms in law might well include these, for instance, examining court innovations such as the increasing use of unpublished and thus nonprecedential opinions 36 36 See generally Unpublished Judicial Opinions: Hearing Before the Subcomm.

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Close and the rise of specialty courts. Even with respect to Congress and the executive branch, one Essay cannot possibly tackle all unorthodox practices and we recognize omissions: For instance, we do not discuss foreign affairs. In addition, we focus mostly on action by policymakers. One could also develop an account of unorthodox inaction in lawmaking and rulemaking.


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On the rulemaking side, withdrawals of rulemakings or not responding to rulemaking petitions might count as unorthodox mechanisms. Strauss has always written with both modern legislation and administration—and their connections—front and center. Close He was an early identifier of the varied unorthodox roles played by the President and the potential doctrinal implications of those different roles. Close He was one of the first scholars to consider the question of Chevron deference for presidential interpretations, and also the link between agency statutory interpretation and the legislative history debate raging on the statutory side.

Close He has been a consistent voice in pushing back against those who turn a blind eye toward the political and legislative context of statutes, and we aim to follow his example here.

Unorthodox policymaking is now often the norm rather than the exception. But not all unorthodox policymaking is the same. Close Omnibus actions are different from emergency actions, not only in motivation and in how the final product looks, but also in the distinct challenges each poses for courts. Outsourcing difficult legislative and regulatory questions to special processes, commissions, and unconventional delegates raises its own set of questions for law, as do the simultaneously regulatory and legislative roles of the modern President, and the increasing use of nonformal means, such as guidance, for regulation.

Direct democracy is yet another type of lawmaking whose differences from the norm courts seem to prefer to ignore. Lest there be any doubt about the importance of the subject matter, a few descriptive statistics should suffice to document the prevalence of the phenomenon. The point is not that these tools are new, or that our categories are necessarily exclusive. Rather, the point is that these vehicles are being used in many instances for different purposes than those for which they were initially introduced, and often with increasing frequency. For instance, we see Congress legislating substantively through the omnibus appropriations process, which was initially conceived only to distribute money to already enacted programs.

Close And we see the President increasingly turning to more informal means such as directives and memoranda to shape substantive domestic policy. A brief snapshot highlights some of these moves, by way of example:. More empirical work certainly would provide a more complete picture. But the prevalence of these practices seems clear—as does their variety, the subject to which we now turn. Omnibus legislation is the most familiar type of unorthodox lawmaking and perhaps the least common type of unorthodox rulemaking.

What unites omnibus vehicles in both branches is their length, complexity, and the way in which they often bring together multiple congressional and administrative stakeholders. In addition, they seem to transfer power away from conventional lawmakers on both sides. The need to coordinate among multiple committees, stakeholders, and agencies has given a heightened role to party leaders and the White House to coordinate or even direct this kind of policymaking in ways that legal doctrine does not currently account for. They may have errors or linguistic inconsistencies that statutory interpretation doctrine does not usually tolerate.

Legislative history for omnibus bills also is often outdated, because parts of such bills often are drafted years before—as part of earlier, failed bills that later are bundled into an omnibus package as part of a bigger deal.

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Sometimes omnibus legislative history is simply nonexistent, because many omnibus bills bypass the committee stage, where reports are typically produced. From an administrative law perspective, omnibus implementation and oversight challenge different doctrinal assumptions, including those of administrative simplicity, rather than the complex and overlapping delegations that now are prevalent. Omnibus Legislation. Congress 12 ; see also Sinclair, Unorthodox Lawmaking 4th ed. Omnibus bills that bring together many different subjects depart from conventional process in multiple ways.

As noted, some parts of an omnibus bill might have been drafted years earlier. Times Oct. Close Even omnibus bills that are drafted all at once and deal with a single subject can have a wide array of authors. Close was initially drafted by the Bush I Administration and ultimately included the work of at least nine different congressional committees. Winner, Chapter Law Inst. Omnibus vehicles also sometimes mask transparency for certain objectives.