Aziz HuqFollow

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California Law Review


Constitutional scholarship is preoccupied with questions of how state power should be constrained. The Constitution, however, not only sets the bounds of state action, it also structures the range of policy options officials may consider in the first instance and the rules that organize how these options are transformed into legally effective choices. This Article analyzes the ensuing constitutional law of agenda control, focusing on the distribution of such powers between the three federal branches. This analysis generates two central claims. First, in order to calibrate intragovernmental relations, the Framers incorporated an array of heterogeneous agenda-control instruments across the three branches of government. These rules make up a hitherto underappreciated constitutional law of agenda control. Second, political actors have ignored or even circumvented a surprising number of these constitutional agenda control rules. They instead have tended to negotiate alternate distributions of agenda-control power at odds with the original constitutional design. While the ensuing transformation of the constitutional processes for governance has ambiguous distributive consequences, the historical transformation of new law control is, on balance, a desirable development.

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