LITMAN IN PRINTER FINAL.DOCX (DO NOT DELETE) 4/11/2017 9:03 AM Duke Law Journal VOLUME 66 APRIL 2017 NUMBER 7 DEBUNKING ANTINOVELTY LEAH M. LITMAN† ABSTRACT This Article debunks the idea that a federal statute’s novelty is an indication that the statute violates constitutional principles of federalism or the separation of powers. In the last six years, every Justice on the Supreme Court has signed onto the idea that legislative novelty signals that a statute is unconstitutional. Many courts of appeals have also latched onto antinovelty rhetoric, two doing so in the course of finding federal statutes unconstitutional. The Supreme Court’s rhetoric about legislative novelty originated as an observation: the Court described a statute as novel when distinguishing that statute from other, constitutionally permissible ones. Since then, the Court has weaponized its rhetoric about legislative novelty such that a federal statute’s novelty is now a “telling indication” that the statute is unconstitutional. This Article urges the Court to abandon this rhetoric. The idea that legislative novelty is a sign that a statute is unconstitutional primarily rests on the mistaken Madisonian premise that Congress reliably exercises the full scope of its constitutional powers and that prior Congresses’ failure to enact a statute shows that prior Congresses assumed that the statute was unconstitutional. But there are myriad reasons why Congress does not enact statutes: enacting federal laws is difficult—in part because of constitutional requirements—and Copyright © 2017 Leah M. Litman. † Assistant Professor of Law, UC Irvine School of Law. Thanks to Mario Barnes, Alex Camacho, Jennifer Chacón, Erwin Chemerinsky, Seth Davis, Daniel Deacon, Dan Burk, Dick Fallon, Catherine Fisk, Bryant Garth, Jonathan Glater, Michele Goodwin, Rick Hasen, Don Herzog, Summer Kim, Mike Klarman, Christopher Leslie, John Manning, Tim Sellers, Greg Shaffer, and Ken Simons for their helpful and generous feedback, as well as Christina O’Tousa and the other editors of the Duke Law Journal for their great work on what turned out to be a very long article. LITMAN IN PRINTER FINAL.DOCX (DO NOT DELETE) 4/11/2017 9:03 AM 1408 DUKE LAW JOURNAL [Vol. 66:1407 Congress legislates in response to existing conditions, which change over time. There are also many reasons why Congress may not innovate and why Congress may not have enacted every constitutionally permissible means of regulation. This Article suggests that there may be a more limited role for legislative novelty to play in areas of underenforced constitutional norms where courts have struggled to articulate workable doctrinal rules. Even then, a statute’s novelty should carry little weight in any determination about the statute’s constitutionality. Finally, this Article reflects on whether rejecting the Court’s rhetoric about legislative novelty necessarily calls into question the idea that a history of similar congressional statutes is evidence that a statute is constitutional. TABLE OF CONTENTS Introduction .......................................................................................... 1409 I. Legislative Novelty and Constitutional Interpretation ............... 1415 A. Antinovelty Rhetoric in Constitutional Argument ........ 1415 B. What Is Antinovelty Rhetoric? ........................................ 1422 II. The (In)significance of Legislative Novelty ................................ 1427 A. Enacting Federal Laws Is Difficult .................................. 1429 1. Constitutionally Prescribed Lawmaking Procedures .. 1429 2. Congressional Procedures ............................................. 1431 3. The Legislative Function ................................................ 1432 B. Noncongressional Sources of Novelty ............................. 1434 1. Judicial Decisions ........................................................... 1435 2. Precipitating Changes ..................................................... 1437 C. Possible Refinements: Actual Constitutional Consensus or Attractive Constitutional Powers? ................................... 1448 1. Actual Constitutional Consensus .................................. 1448 2. Attractive Powers ............................................................ 1452 III. Actual Constitutionality, Views of Branches, and Conduct of Branches: A New Justification? ............................................... 1454 A. The Constitution on Novelty and Actual Unconstitutionality ............................................................ 1455 1. Text................................................................................... 1455 2. Structure ........................................................................... 1456 3. Constitutionalism ............................................................ 1457 4. Precedent ......................................................................... 1458 5. History ............................................................................. 1458 6. Congressional Practice ................................................... 1459 LITMAN IN PRINTER FINAL.DOCX (DO NOT DELETE) 4/11/2017 9:03 AM 2017] DEBUNKING ANTINOVELTY 1409 B. Conduct and Actual Constitutionality: Comparing Congressional Action and Inaction .................................. 1466 1. Congressional Action as a Sign of Congress’s Views .. 1466 2. Congressional Action as Congressional Conduct. ....... 1468 3. Congress’s Conduct: Legislative Novelty ..................... 1476 C. Second-Best Solution: The Antinovelty Principle as a Limiting Principle ............................................................... 1479 1. Arbitrary .......................................................................... 1481 2. Administrability .............................................................. 1482 3. Viability. .......................................................................... 1487 IV. Rethinking Novelty ...................................................................... 1488 Conclusion ............................................................................................. 1491 [S]ometimes “the most telling indication of [a] severe constitutional problem is the lack of historical precedent” for Congress’s action. —Chief Justice John Roberts1 [A] doubtful question [regarding] the respective powers of those who are equally the representatives of the people, are to be adjusted if not put to rest by the practice of the government. An exposition of the constitution, deliberately established by legislative acts ought not to be lightly disregarded. —Chief Justice John Marshall2 INTRODUCTION Change undergirds many difficult questions in constitutional law. One persistent question is how the Constitution may change—through the formal amendment process, through social movements, or through judicial decisions.3 Another is whether, and when, changed 4 circumstances should alter how the Constitution is interpreted. 1. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2586 (2012) (quoting Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 505 (2010)). 2. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819). 3. See generally Michael C. Dorf, The Undead Constitution, 125 HARV. L. REV. 2011 (2012) (book review) (describing popular and social movements that precipitate constitutional change); Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947 (2002) (same); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457 (2001) (describing sources of change other than constitutional amendments). 4. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 863 (1992) (plurality opinion) (posing the question of when a changing “understanding of the facts” merits LITMAN IN PRINTER FINAL.DOCX (DO NOT DELETE) 4/11/2017 9:03 AM 1410 DUKE LAW JOURNAL [Vol. 66:1407 Still another question has begun to emerge recently—whether legislative change, meaning a federal statute’s novelty, speaks to whether that statute is constitutional. Three decades ago, the Supreme Court began to suggest that a federal statute’s novelty could be evidence that the statute exceeded the scope of Congress’s delegated powers or violated the Tenth Amendment. When the Court in New York v. United States5 held that Congress could not require state legislatures to enact federal directives, it observed that the challenged federal statute was different from other statutes: “The . [challenged] provision appears to be unique. No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress.”6 Five years later, Printz v. United States7 turned New York’s observation into an affirmative reason for why a federal statute purporting to require state executives to enforce federal law was unconstitutional.8 Writing for the majority, Justice Scalia maintained that if “earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.”9 Since Printz, the Court has, on several occasions, trotted out the idea that legislative novelty signals that a statute is unconstitutional in cases regarding federalism and separation of powers.10 For example, when the Court held in Free Enterprise Fund v. Public Company Accounting Oversight Board11 that the Public Company Accounting Oversight Board’s (PCAOB) removal structure violated the separation