Leah M. Litman, Debunking Anti-Novelty, 66 Duke L. J. (2017).
This article debunks the idea that a federal statute’s novelty is an indication that the statute violates constitutional principles of federalism or the separation of powers. In the last six years, every Justice on the Supreme Court has signed onto the idea that legislative novelty signals that a statute is unconstitutional. Many courts of appeals have also latched onto the anti-novelty rhetoric, two doing so in the course of finding federal statutes unconstitutional. The Supreme Court’s rhetoric about legislative novelty originated as an observation: The Court described a statute as novel in the course of distinguishing that statute from other, constitutionally permissible ones. Since then, the Court has weaponized its rhetoric about legislative novelty such that a federal statute’s novelty is now a “telling indication” that the statute is unconstitutional. This article urges that this rhetoric be abandoned: The idea that legislative novelty is a sign that a statute is unconstitutional primarily rests on the mistaken Madisonian premise that Congress reliably exercises the full scope of its constitutional powers and that prior Congresses’ failure to enact a statute shows that prior Congresses assumed that the statute was unconstitutional. But there are myriad reasons why Congress does not enact statutes: Enacting federal laws is difficult — in part because of constitutional requirements — and Congress legislates in response to existing conditions, which change over time. There are also many reasons why Congress may not innovate and why Congress may not have enacted every constitutionally permissible means of regulation. This article suggests that there may be a more limited role for legislative novelty to play in areas of under enforced constitutional norms where courts have struggled to articulate workable doctrinal rules. But even then, a statute’s novelty should carry little weight in any determination about the statute’s constitutionality. Finally, this article reflects on whether rejecting the Court’s rhetoric about legislative novelty necessarily calls into question the idea that a history of similar congressional statutes is evidence that a statute is constitutional.