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02/01/2018

Saikrishna Prakash: Of Synchronicity and Supreme Law
Michael Ramsey

Saikrishna Prakash (University of Virginia School of Law) has posted Of Synchronicity and Supreme Law on SSRN.  Here is the abstract: 

The Constitution identifies three forms of supreme federal law — the Constitution, laws, and treaties — and specifies, to some extent, procedures for their adoption. Yet it says rather little about questions of timing and the making of those laws. In particular, it does not directly address whether the chambers must act on bills in close proximity to each other, whether amendments may be proposed across eras or ratified across centuries, or whether the President may finalize a treaty decades after the Senate consents to its ratification. This essay is the first to offer a comprehensive account of existing lawmaking practices as they relate to time. It also considers how those timing practices have evolved in often fascinating ways. Finally the essay argues that the Constitution imposes a requirement of synchronicity across these three forms of federal lawmaking. In particular, bills must be perfected into law within a congressional session, a rule immanent in the Constitution’s incorporation of the concept of a “session.” For constitutional amendments, the limits are more complicated. With respect to the proposal of amendments, both chambers of Congress must pass the proposal within one session. Moreover, once Congress sends amendments to the states, those proposals lapse if they are not ratified within a reasonable period. Finally, treaties are similarly constrained by a requirement of synchronicity. In particular, the President must make treaties within a reasonable time after Senate consent to their ratification. These are controversial assertions because if they were widely accepted, it would have far-reaching (and, in some cases, disturbing) implications for how our institutions currently fashion and refashion Supreme Law.

(Thanks to Seth Barrett Tillman for the pointer).