CFP: Congress & History

[Word has reached us of a call for the 2021 Congress & History Conference in the guise of the following open letter, dated December 8, from Burdett Loomis, University of Kansas.  The organizers tell us that the legal historian Maggie Blackhawk is among the organizers.  DRE.  H/t: JC]

West Front of Capitol, July 1861 (LC)

I'm delighted to say that Steven Smith (Washington University at St. Louis) and I will be host, via Zoom, 2021 Congress & History Conference. The conference will be held June 10-11. We welcome submissions – either individual papers or full panels -- on both contemporary and historical topics from all methodological perspectives. These topics could include legislative representation (including those focused on race or gender), legislative procedure, impeachment, congressional committees, parties, etc. Moreover, we enthusiastically encourage scholars whose work touches on Congress, legislatures, and legislation to consider applying, even if you do not consider yourself a “congressional scholar.” Likewise, we hope that historians and constitutional law scholars whose work relates to Congress and legislation will apply. We especially want to encourage junior scholars (faculty and graduate students) and first-time attendees. This small (~50 person) conference is a wonderful way to receive constructive feedback on your work and get to know the broad community of scholars working on legislative politics. We particularly seek scholars from and working on historically under-represented groups to make paper or panel proposals. In addition, the conference will have a poster session for graduate students to present their work, with an award for the best poster. The application deadline for all proposals and offers to serve as a discussant is January 20, 2021.

Here's a link to the application form.  Please submit the form and send a backup copy to me (bloomis@ku.edu), to be shared with Steve. Getting the word out about this excellent, small conference is important, especially beyond the traditional group of legislative scholars. Please circulate this to colleagues and graduate students who may not have received it and post this on list-serves that you may be a part of. Please don't hesitate to contact me (bloomis@ku.edu) or Steven (smith@wustl) if you have any questions. 

Although I’d love to host you all at KU’s Dole Institute of Politics in June, I’m afraid, for this year, we’ll have to keep our distance. Still, last year’s conference was a success via Zoom, and I’m sure this one will be as well. If you’d like to see the kinds of papers that have been presented at recent conferences, you can go to https://congressandhistory.mit.edu/past-conferences These programs are illustrative, and we certainly hope to broaden the scope of work in 2021.

Davies on the Mann Act's Marbury Moment

Ross E. Davies, George Mason University Antonin Scalia Law School, has posted Who Cares What Congress Thinks? Not James Mann: The Mann Act’s Marbury Moment, which appears as 10 Journal of Law 105 (2020):

James Mann (LC)

In Caminetti v. United States, the U.S. Supreme Court employed a severely puritanical approach — on the facts and on the law — to statutory interpretation. Conversely, the opinion for the Court in Caminetti triggered an intriguingly indulgent legislative-judicial exchange about the role of the courts in statutory interpretation. This little essay begins with a quick look at Caminetti and the statute it interpreted, proceeds through a similarly speedy examination of that indulgent post-decision exchange, and concludes with a few questions.

--Dan Ernst

Harrison on the Delegation Problem

John C. Harrison, University of Virginia School of Law, has posted Executive Discretion in Administering the Government's Rights and the Delegation Problem:

Governments regulate private conduct. They also exercise rights of ownership and contract that are like those of private people. From the founding to today, executive officials have exercised substantial policy discretion in managing the government's own resources. That practice is consistent with the text and structure of the Constitution. Administering the government's resources, and making policy judgments in doing so, is at the core of carrying the law into execution. The executive itself does not have power to create programs that employ federal resources such as federal funds, but when Congress creates such a program, it may leave many important choices to the executive. At most, the Constitution requires that Congress provide an intelligible principle to guide that discretion. The non-delegation principle concerning regulation of private conduct may be more demanding than that, but the exercise of the government's own rights is a distinct category of executive activity. The practical scope of this principle is substantial. Federal spending today is a major tool through which Congress affects behavior. Like spending and contracting, federal regulation through licensing takes the form of the administration of the government's resources. Licensing of broadcasting, for example, rests on the principle that the airwaves are public and not private property, and that private people may use that resource only on terms the government sets. Licensing schemes put the government in the position of an owner, able to give licenses that permit conduct that otherwise would violate the owner's rights. Congress therefore may give executive officials substantial discretion when it creates a licensing system. The important question is the extent of Congress's power to put the government in the position of an owner. Two well-known early examples of delegation to the executive, the Indian Commerce Act of 1790, and the regulation of steamboat safety, took the form of licensing. The historical evidence does not indicate that proponents of those systems justified delegation on the grounds suggested here. It does suggest that steamboat licensing was understood to be based on federal control of the public right of navigation of interstate waterways. The executive function of administering the government's resources is a distinct category of executive activity from the standpoint of constitutional structure, and the principles that apply to delegation in other contexts need not apply in that context.

--Dan Ernst