Law, College of

 

Title

Sacrificing Legislative Integrity at the Altar of Appropriations Riders: A Constitutional Crisis

Document Type

Article

Date of this Version

1997

Comments

Published in Harvard Environmental Law Review Vol. 21 (1997), pp. 457-535.

Abstract

The technique of appending substantive provisions to appropriations bills has become a favorite tool of the legislative trade in recent years. Congress has employed appropriations riders to dictate the outcome of public policy issues ranging from abortion to oil development in pristine wilderness areas. Riders have been used with particularly destructive effect to circumvent long-standing environmental policies, especially those involving the use of natural resources and public lands. In many cases, the policies affected were the result of decades of activity in Congress and in the courts, and retain broad public and legislative support. Appropriations riders have also allowed these significant changes in policy to be made without public input or legislative accountability. The policy changes implemented through the appropriations process would likely not survive the scrutiny of natural resources committees and full floor debate. Appropriations riders have mandated dramatic changes in these carefully brokered policies, with highly disruptive effects on the long-term management and the sustainability of the public lands and natural resources.

This Article explores several recent environmental riders and proposed riders, and their likely long-term effects. In particular, it focuses on the effects of the 1995 Rescissions Act--specifically the Emergency Timber Salvage Rider3--on the management of natural resources within federal forest lands in the Pacific Northwest. In an attempt to provide relief to communities dependent on logging of public lands, this rider undermined decades of land management planning and overturned policies developed through extended litigation and negotiations between industry, environmentalists, state and local governments, and the executive branch of the federal government. The cumulative environmental effects of the rider are likely to persist long after the "emergency" indicated by the rider has passed. Yet, because of the abbreviated nature of the appropriations process, neither the public nor the legislators who voted on the timber rider were aware of its potentially far-reaching consequences.

This Article argues that the appropriations process is an ill-suited vehicle for formulating major changes in policy and establishing national priorities. Indeed, the repeated abuse of the process to force executive action and, curtail judicial oversight has created a serious crisis. This Article examines several possible remedies, including the possibility of stricter judicial scrutiny of legislation passed by rider, as well as the enactment of line-item veto legislation and legislation that would give congressional germaneness rules (limiting the subject matter of provisions that can be appended to a bill) the force of law. Such legislation may be a step in the right direction; however, it may raise constitutional challenges, and, in any event, none of these options would go far enough to prevent future legislative subterfuge. Moreover, as a practical matter, the fact that an interest is ,deemed a "right" does not necessarily preclude erosion of that right through appropriations riders..