Enactment Conditions, Legislative Provisions, and the Durability of the Law

Once a bill is passed by Congress and signed into law by the president, it may remain unchanged for years, or it might be amended soon thereafter. Several recent studies have provided insight into the factors that shape legislative durability. One potential set of explanatory factors concerns the general political conditions at the time of enactment, such as whether control of government is divided. Maltzman and Shipan (Reference Maltzman and Shipan2008, Reference Maltzman, Shipan, Jenkins and Patashnik2012), for example, argue that laws created under unified government survive longer because they are more adaptable and more cohesive, while those enacted in spite of bicameral disagreement or under divided government are more likely to be interpreted and changed. Other studies provide both agreement and argument with this initial study. Ragusa (Reference Ragusa2010), for example, finds that laws are indeed sturdier and less likely to be amended in the short term if they are enacted by unified government but also that, over a longer period, laws enacted under divided government might be more durable because their enactment requires diverse support. Looking more broadly at government programs, Berry, Burden, and Howell (Reference Berry, Burden and Howell2010) find that a program created under divided government is more likely to be killed than a program created under unified government.Footnote ¹ And Dodd and Schraufnagel (2009) argue that the relationship between durability and polarization might be even more complex. Moderate polarization leads to legislative activity and repeals, while high polarization leads to stalemate, and low polarization fails to create the level of ideological debate that would bring about legislative progression.

The characteristics of legislation provide another potential set of explanatory factors. Maltzman and Shipan (Reference Maltzman and Shipan2008, Reference Maltzman, Shipan, Jenkins and Patashnik2012) find, for example, that several factors specific to a law affect its durability. Laws are less durable when they are complex, when they contain sunset provisions, and when the initial passage vote demonstrates that the enacting Congress was divided over whether to adopt the law. Adler and Wilkerson (Reference Adler and Wilkerson2012) provide additional support for the effect of sunset provisions, showing that these expirations play a key role in determining when Congress amends earlier laws. And the public policy literature includes a number of insightful studies that demonstrate the ways in which initial policy choices affect later actions in the same policy area (e.g., Patashnik Reference Patashnik2003, Reference Patashnik2008).

The above literature addresses legislative and executive responses to past legislative enactments. Such studies, however, ignore another institutional actor that can significantly affect the life of a law: the courts. Some research does demonstrate how Congress attempts to plan ahead for judicial involvement in the policy-making process (e.g., Light Reference Light1992; Shipan Reference Shipan1997, Reference Shipan2000; Randazzo, Waterman, and Fine Reference Randazzo, Waterman and Fine2006; Smith Reference Smith2006). And other studies note how certain elements of legislation, such as a lack of clarity in defining key terms, can make statutory interpretation more likely in certain cases (Melnick Reference Melnick1994, 86–88; see generally Crespi Reference Crespi2000). Furthermore, there are numerous instances in which legislative histories make clear that lawmakers strike provisions that may alter the likelihood of judicial involvement because of either a disagreement between the chambers or a threat of an executive veto (e.g., Cameron Reference Cameron2000).Footnote ²

But present scholarship does not thoroughly address the likelihood that these elements consistently and systematically influence the duration of laws. This gap in the literature is troubling for a variety of reasons. It obscures a chance to add theoretical insight to a debate over legislative durability since the factors that influence how the legislature shapes legislation are potentially distinct from those influencing the judiciary. It also overlooks a key practical consideration: that the shape that most major legislation takes after its enactment, and its attendant influence on public life, is very likely influenced by the courts.

Overall, then, we are starting to gain an understanding of how initial conditions, such as divided government, can affect the length of time before Congress and the president change laws from their original form. Similarly, we have learned that features specific to a law affect its durability. What we do not know, however, is whether these sorts of factors—the conditions at time of enactment or the specific characteristics of a law—might also influence the likelihood that legislation will reach the courts. To investigate these potential effects, we next take a closer look at why and when courts examine and interpret statutes.

Judicial Interpretations of Legislation

Courts generally are leery of appearing to perform a lawmaking function. Whereas Congress explicitly alters laws with formal amendments, courts typically avoid this type of language. Nonetheless, their decision to consider a challenge to a law plays an important role in the postenactment life of legislation. The judiciary’s involvement, after all, can provide an opportunity for judges to implement their preferred outcomes, although in some instances court involvement is purely innocuous in terms of policy outcomes. But even if judicial participation is more innocuous—in the sense that it is not the result of strategic attempts by judges to implement policy that is consistent with their ideal points—involvement by the courts raises questions about the life of legislation after its enactment.

The responsibilities of courts in hearing a challenge to legislation are broad and can vary from case to case. One significant power exercised by courts involves the review of congressional legislation to determine its constitutionality. Although constitutional challenges have important implications for a law’s durability, scholars have started to gain an understanding of the factors that influence the likelihood of judicial review (Harvey and Friedman Reference Harvey and Friedman2006, Reference Harvey and Friedman2009; Segal, Westerland, and Lindquist Reference Segal, Westerland and Lindquist2011). Less attention, however, has been paid to another function of courts: offering statutory interpretations of laws, independent of their constitutionality. This gap in knowledge is significant because statutory interpretation constitutes a chief function of the courts, with major consequences for the meaning and influence of legislation. Normally, courts conduct statutory interpretation via an assessment of the plain text meaning, supplemented by their reliance on legislative histories and accepted canons of statutory construction (Eskridge and Frickey Reference Eskridge and Frickey1990; Kim Reference Kim2008). Although courts cannot strike down legislation absent a constitutional challenge, they may alter its meaning in important ways through statutory interpretation.

One form of statutory interpretation requires courts to define provisions and determine applications of vague legislation. For instance, in United States v. Weinreb (99 F. Supp. 763 [S.D.N.Y. 1951]), claimants challenged the opacity of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) of 1947 with respect to “economic poisons.” Nowhere in FIFRA was the word “disinfectant” used, and the defendants argued that the statute was not intended to apply to the sale and shipment of disinfectant products. The Southern District Court of New York, however, found that the statute covered disinfectants since other regulations regularly placed these substances under the umbrella of “fungicide.”

At the same time that court interpretations give meaning to legislation, they also define its scope. Many laws delegate wide-ranging powers to agencies, while others lack specific information about how broadly they should apply (Huber, Shipan, and Pfahler Reference Huber, Shipan and Pfahler2001; Huber and Shipan Reference Huber, Shipan, Weingast and Wittman2006). These features open laws to challenge in the court system, which must resolve disputes about congressional intent in defining a law’s reach. For instance, Accuracy in Media, Inc. v. FCC (521 F.2d 288 [D.C. Cir. 1975]) concerned a complaint filed by the petitioners on behalf of television stations with the Federal Communications Commission (FCC) against the Corporation for Public Broadcasting (CPB). Accuracy in Media, contended that programming provided by the CPB, which dealt with sex education and the criminal justice system, was not objective and had asked the FCC to review the CPB programming relative to the mandate of the Public Broadcasting Act of 1967. The District of Columbia Circuit Court, however, found that neither the language nor the legislative history of the Public Broadcasting Act or the Federal Communications Act authorized the enforcement of the CPB by the FCC.

Another way that courts define scope involves determining to whom the laws apply. In so doing, their interpretations determine who maintains responsibility for carrying out laws and how these actors will apply legislative provisions. Consider a dispute about the scope of the No Child Left Behind Act (NCLBA) that came before the D.C. Circuit Court of Appeals in 2005. In Center for Law and Education et al. v. U.S. Dept. of Education (253 F.3d 741 [D.C. Cir. 2001]), plaintiffs argued that the committee formed to create the regulations associated with the NCLBA did not have the proper balance of representatives of education officials, parents, and students. The Department of Education asserted that the court lacked jurisdiction in the case, as the creation of a committee to determine regulations was not a final agency action. The court agreed with the Department of Education’s claim that the NCLBA had no authority over the governance of forming a committee.

To the extent that judicial decisions engage in statutory construction, they alter the original legislative bargain reached by Congress in adopting a law.Footnote ³ Indeed, “statutory interpretation involves creative policymaking by judges and is not just the Court’s figuring out the answer that was put ‘in’ the statute by the enacting legislature” (Eskridge and Frickey 1990, 345). Although there are clearly some instances in which judicial interpretations may be relatively innocuous—such as when a court determines the meaning of a single word or phrase in a law that makes minimal difference in how it is administered—in many other instances judicial activity involves significant statutory interpretations that alter the character or scope of legislation. Furthermore, even innocuous rulings raise unanswered questions about the ability of the elected branches to shape public life.

Hypotheses

Which factors might affect whether and when a law reaches the courts? Building on the previous section, as well as the aforementioned literature on legislative durability, we focus here on two categories of factors. First, the likelihood that a law reaches the courts shortly after enactment might depend on the political conditions in existence at the time the law was passed (i.e., the initial conditions). Second, it may depend on features specific to each law.Footnote ⁴

Data

To test our hypotheses regarding the conditions that increase a law’s likelihood of being considered by the federal judiciary, we must first begin with a set of laws to be considered, then determine whether these laws have particular features that might be mentioned in opinions, and finally ascertain when the laws have been addressed by the courts, if at all, in the time period of study. To identify laws, we use Mayhew’s list of major laws (2005) passed between 1947 and 2004. To ensure comparability of laws over their own lives, we limit our analysis to court action on laws in their original form. In particular, we want to examine the law before the time (if any) when it is amended in a significant fashion. To do this, we draw on Maltzman and Shipan’s (Reference Maltzman and Shipan2008) data, which take the Mayhew list and identify whether and when those laws have been subjected to a major amendment. Because these data are censored on major amendments or modifications to legislation by future legislative coalitions, the data lend themselves to studying how original enactment conditions affect court action while the law still represents the intent of the enactment coalition.Footnote ⁷ Our data set is thus composed of a series of yearly observations for each law, from its enactment year until the year the law is significantly amended (or 2008, whichever comes first). The first observation for each law occurs in the year in which it was enacted, and in this first observation the dependent variable takes a value of 0. The dependent variable continues to hold a value of 0 until the year in which it is interpreted by a federal court.

To identify when the courts first considered a law, we begin with a search for federal court case mentions of it.Footnote ⁸ Using Mayhew’s list, we turned to LexisNexis and searched for judicial mentions of each law during the period beginning January 1 of the year after the law’s enactment. We searched for the laws by name, with additional searches by public law number when necessary.Footnote ⁹

Our intent in this article is to use the length of time it takes a challenge to a law to reach the federal courts as a vehicle for empirically understanding what determines the involvement of the judiciary in the legislative process. But for reasons discussed previously, we are sensitive to the possibility that some mentions of laws in judicial opinions may be quite innocuous in that they have little practical significance or are not the product of a direct challenge to the law. For instance, in Fraternal Order of Police v. Baltimore City Police Department, a court dismissed a suit for overtime wages under the Fair Labor Standards Act. In so doing, the court cited the Unfunded Mandates Reform Act as a recent law protecting state and local governments. The brief mention of the Unfunded Mandates Reform Act did not make the law a central part of the case, and the court offered a simple statement of its meaning without considering the law in detail. Our intent is to eliminate such mentions from our data set since they constitute the most benign judicial “interpretation” of a law.

To eliminate the possibility of retrieving such trivial citations, we consider the first statutory interpretation of a law to take place when it is mentioned in the Case Summary. These summaries are written by legal experts, draw on the exact language used by the court, and contain key aspects of the case at hand, such as the procedural posture, the overview, the outcome, and core terms associated with the case. Thus, a law mentioned in the case summary is more likely to be the subject of significant statutory interpretation, in which courts determine its meaning and scope as a central feature of their decision.Footnote ¹⁰ After the law is mentioned in a case summary, the law drops out of the data set, and the variable remains dropped for the remainder of the time series.

If a law is never interpreted by a federal court before its first major legislative amendment, or if a federal court never interprets the law, the dependent variable retains the value of 0 for the length of the time series. For example, the National Service Act (PL 103-82), which has never been interpreted by a federal court nor significantly amended by Congress, is coded 0 from 1993, which is the year the law was enacted, through 2008, when our data are right censored. The Civil Liberties Act of 1988, also known as the Japanese-American Reparations Act, is coded 0 for 1988 and then receives a value of 1 for 1991, the year in which a federal court first interpreted it (Congress never offered a significant amendment of this law). After 1991, it drops out of the data set. The Social Security Amendments of 1950 (PL 81-734), while interpreted by the federal courts in 1956, drops out of the data set in 1952, the year in which it was amended. This approach allows us to capture the length of time from enactment to significant interpretation by the federal courts, contingent on the original law not having been revised or reversed by Congress. By understanding when and if the judiciary makes a decision regarding the interpretation or upholding of a law, we are able to test our hypotheses regarding what factors in the legislative process and the statutes it promulgates enhance the probability of a role for the judiciary in shaping the law.

As shown in table 1, of the 321 laws in the analysis, 223 (69.4%) were mentioned by the judiciary before the first significant modification to the law by Congress. On average, judicial mentions came 3.2 years after the enactment of a law, with a standard deviation of 5.8 years.Footnote ¹¹ Figure 1 further illustrates this relationship, showing both that in each decade the majority of laws are typically mentioned within 3 years and that laws include a range of durations within each decade.

Table 1.Descriptive Statistics

^* Law-years.

^† Standardized.

^‡ Statutory interpretation-related mentions occurring before a significant amendment.

Figure 1.

Proportion of laws significantly mentioned by the courts by number of years until mention and decade.

Because we are examining durations—specifically, the duration between the time a bill is enacted into law and when the courts first pay serious attention to it—we use a Cox regression. We use this approach because of its flexibility (i.e., it does not require any assumptions about the shape of the underlying hazard function) but note that we obtain similar results using a Weibull regression. The results we report in our tables are hazard ratios, so values greater than 1 indicate an increased likelihood and those less than 1 indicate a decreased likelihood.

Robustness of Results

As a further check on these findings, we can restrict our sample to only those laws with the most concrete available information about their durability. Once Congress amends a law, it drops out of the data set (since this prevents courts from hearing cases about the original law). In Maltzman and Shipan’s original data set, congressional amendments are identified using LexisNexis’s “statutes at large” module (2008, 258). We supplement these data with a search of the legislative summaries provided by Congressional Quarterly (CQ). This allows us to verify the link between the original and amending laws identified in the data set. Using a stringent coding standard, we were able to find direct evidence from CQ that a subsequent law amended an earlier one for about 37% of the law pairs. With a slightly less stringent coding standard, CQ summaries suggested a link between original and amending laws for about 55% of law pairs in the data set (the 37% with direct evidence plus an additional 18%).Footnote ¹⁸

In table 3, columns 1 and 2, we present the results of our durability model for a restricted sample (i.e., the CQ-identified law pairs plus those laws that Congress never amended). This procedure guards against the potential for bias if amendments were identified incorrectly by LexisNexis, which would cause original laws to drop out of the data set in error. But such bias does not appear to be a problem; in large part, the results are similar to those we presented above.Footnote ¹⁹ The CQ-corroborated sample provides more robust evidence that enactment conditions have an important effect on court responses to legislation. Similarly, in table 3, column 3, we present the results when including laws that were eventually declared unconstitutional by the Supreme Court after lower court action (these laws had been excluded from our original analysis). We do so on the basis of the assumption that even cases of judicial review necessitate statutory interpretation by the courts (Eskridge 1987, 1484). Once again, our results remain largely unchanged, providing further evidence that the political conditions at the time of a law’s enactment affect its durability.

Table 3.Likelihood of a Significant Judicial Mention Using Robustness Checks

Note—Cox regression, Breslow method for ties. Model 1 includes law pairs with only direct evidence of amendment from Congressional Quarterly (CQ). Model 2 includes any law pair with a CQ-suggested link. Results are hazard ratios; thus, coefficients greater (smaller) than 1 are consistent with expected effects that are positive (negative). Model 3 includes cases in which a law was struck down as unconstitutional. Standard errors in parentheses.

^* p < .10.

^** p < .05.

^*** p < .01, one-tailed tests.