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01/16/2016

Aziz Huq: The Constitutional Law of Agenda Control
Michael Ramsey

Aziz Z. Huq (University of Chicago Law School) has posted The Constitutional Law of Agenda Control (California Law Review, Vol. 104, December 2016, forthcoming) on SSRN.  Here is the abstract:   

Constitutional scholarship is preoccupied with questions of how state power should be constrained. The Constitution, however, not only sets bounds to state action, it also structures the range of policy options and the rules for making 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, the Framers incorporated an array of heterogeneous agenda control devices across the three branches in order to calibrate intragovernmental relations. These make up a hitherto ignored constitutional law of agenda control. Second, a surprising number of these constitutional agenda-setting rules have been ignored or even circumvented. Political actors 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, there is reason to treat the historical transformation of constitutional agenda control as on balance a desirable development.

(Via Larry Solum at Legal Theory Blog, who says "highly recommended."