Congressional Review of Judge-Made Law

Washington Post                                                                                                                                                        “In draft  abortion ruling, Democrats see minority rule”                                                                                        May 5, 2022

For nearly half a century, Republications have railed against “unelected judges” making rulings that they claim disenfranchise voters from deciding for themselves what laws should govern hot-button issues.

But since the release this week of a draft Supreme Court opinion that would overturn the longstanding constitutional right to abortion, Democrats have been the ones embracing that complaint, flipping the script as the party vents its frustration with elements of the U. S. system that have empowered a minority of the country’s voters to elect lawmakers who have successfully reshaped the high  court. Washington Post 

Senator Warren: The Supreme Court is not the ones that will get the final word on Roe v. Wade; it is the Congress that gets the final word. We have the capacity to keep Roe v. Wade as the law of the land.

     Congressional Review of Judge-Made Common Law
The President and/or the Congress would request that the Administrative Conference of the United States (ACUS) develop a recommended game plan for Congressional review of a select number of common laws. The common laws of interest are those that ACUS has identified as meeting a well-defined list of qualifying criteria which focus on perceived shortcomings in judge-made laws which inhibit the effective management of the administrative state.
 The plan would also include recommend procedures for conducting the said review. It is envisioned that ACUS would institute, on an ad hoc basis, a broadening of the educational and employment backgrounds of its program participants. These program participants would not be members of ACUS but would provide for a multidisciplinary review of issues which would include individuals with a degree in economics, history, political science, public policy or public administration.
 The aforementioned participants would be accompanied by a substantial increase in the number of participants who are legal practitioners in contrast to legal academicians. ACUS members could participate in the discussions of this ad hoc group but would have no authority to make a motion or to exercise a vote until its work product is submitted for formal review by ACUS.
 When the aforementioned work product undergoes a review by an ACUS committee its key authors would be invited to attend with a nonvoting status. Based upon CRE’s multi-year outreach program, coupled with its supporting analyses, a good starting point is to address the issues outlined in this document.
 Jim Tozzi           Center for Regulatory Effectiveness           Washington, DC
NB  Based upon the aforementioned article in the Washington Post it appears that both parties agree to  Congressional interventions in general; why not the process described above?  It should be noted that the recommendations set forth herein do not give unfettered discretion to the Congress because the scope of the review and the processes to be used by the Congress are based upon the views of the Administrative Conference of  the US which includes every major agency within the federal government.


Surprisingly many leaders of the legal profession have been remarkably silent on this matter notwithstanding the considerable interest expressed by members of Congress. Editor’s Note: We will provide a link to comments submitted to this page.




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