Even for more popular decisions, such as the desegregation case of 1954, little was settled by the Court's ruling. More than a decade later, a federal appellate court noted: "A national effort, bringing together Congress, the executive, and the judiciary may be able to make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed."3 To deal with racism and segregation, it was necessary for Congress and the President, with bipartisan majorities, to pass such statutes as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Devins and I concluded that judicial exclusivity in constitutional lawmaking would be contrary to American history, the framers' intent, and legal development. We also believe that it would lead to political instability, not stability. Our response to the Alexander-Schauer article will appear in the February 1998 issue of Virginia Law Review.

To explain the breadth of congressional activity in interpreting the Constitution, the following three sections discuss (1) how Congress resolves these issues before the Court decides, (2) what it may do when the Court upholds the constitutionality of a measure, and (3) what it may do when the Court decides that a measure is unconstitutional. The meaning of the Constitution is not fixed by any one branch, but is rather that product of all three branches acting in concert with the states and the public at large.

Before the Court Decides

Congress frequently must act on constitutional matters before there are useful precedents from the courts. Many of the difficult issues related to the veto power, the pocket veto, recess appointments, the incompatibility and ineligibility clauses, war powers, covert operations, and other disputes are generally resolved by Congress with little input from the courts.4

Occasionally these issues move toward the Supreme Court, but just as quickly they are turned back by various threshold tests. In the 1970s, covert funding of the intelligence community was challenged as a violation of the Statement and Account Clause. In 1974, the Court held that the litigant lacked standing to bring the suit. United States v. Richardson, 418 U.S. 166. That issue was left to Congress and the President to decide. In 1987, when it appeared that the Court would decide the constitutionality of a pocket veto by President Reagan, the case was dismissed on grounds of mootness. Burke v. Barnes, 479 U.S. 361. That issue, too, was pushed back to elected officials to resolve. A variety of other doctrines-political questions, ripeness, prudential considerations, nonjusticiability, and equitable discretion-are used by the court to sidestep constitutional issues. The result is that a number of constitutional issues are returned to the elected branches.

When the Court Upholds Constitutionality

When the Court decides that a congressional statute is constitutional, the controversy may remain open for different treatment by the legislative and executive branches. For example, President Andrew Jackson received a bill in 1832 to recharter the United States Bank. Although the Court in McCulloch v. Maryland (1819) had ruled that the bank was constitutional, Jackson vetoed the bill on the ground that it was unconstitutional. His veto message said that he had taken an oath of office to support the Constitution "as he understands it, and not as it is understood by others." His position on the veto power has been followed by all subsequent Presidents. Regardless of the constitutional decisions reached by Congress and the courts, Presidents may independently analyze the constitutionality of bills presented to them.

To take a contemporary example, Presidents Reagan and Clinton signed bills reauthorizing the office of independent counsel. The Court in Morrison v. Olson (1988) upheld the constitutionality of the independent counsel statute. Nevertheless, President Clinton or any future President has the independence to veto a reauthorization bill on the ground that the office of independent counsel encroaches upon the executive power granted to the President by the Constitution. For that matter, Members of Congress could decide at the next reauthorization stage that the office of independent counsel violates the Constitution. Morrison simply means that Congress and the President may create the office if they want to. They may rethink and revisit the statute at any time.

3 United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 847 (5th Cir. 1966), cert. denied sub nom., East Baton Rouge Parish Sch. Bd. of Davis, 389 U.S. 840 (1967 (emphasis in original).

4 Louis Fisher, "Separation of Powers: Interpretation Outside the Courts," 18 Pepperdine L. Rev. 57 (1990); Louis Fisher, Constitutional Conflicts between Congress and the President (4th ed. 1997).

My attached CRS Report, "Congressional Checks on the Judiciary," contains a number of other examples of Congress acting by statute to neutralize a constitutional decision by the Court. In 1986, the Court upheld the constitutionality of an Air Force regulation that prohibited Captain Simcha Goldman from wearing his yarmulke indoors while on duty. The Court decided that the needs of the Air Force outweighed Goldman's constitutional right to freely exercise his religion. Goldman v. Weinberger, 475 U.S. 503. Within a year, Congress attached to a military authorization bill language permitting military personnel to wear conservative, unobtrusive religious apparel indoors, provided that it does not interfere with their military duties. 101 Stat. 1086-87, sec. 508 (1987). The Court decided the conflict between Air Force needs and religious freedom one way; Congress decided it the other way. When the Court Finds Unconstitutionality

If the Court decides that a governmental action is unconstitutional, it is usually more difficult for Congress and the President to challenge and override the judiciary. But even in this category there are examples of effective legislative and executive actions in responding to court rulings.

In his inaugural address in 1857, President James Buchanan announced that the dispute over slavery in the territories "is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled." Two days later Chief Justice Taney handed down the Court's decision in Dred Scott, holding that Congress could not prohibit slavery in the territories and that blacks were not citizens. That decision was eventually overturned by the Civil War Amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments-but before those amendments were ratified Congress and the President had already reversed Dred Scott. In 1862, Congress passed legislation to prohibit slavery in the territories, 12 Stat. 432, and in that same year Attorney General Bates released a long opinion which held that neither color nor race could deny American blacks the right of citizenship. 10 Op. Att'y Gen. 382 (1862).

In 1916, Congress relied on the commerce power to enact a child labor law. In Hammer v. Dagenhart (1918), the Court held that the statute was unconstitutional. A year later Congress passed new child labor legislation, this time relying on the taxing power. Again the Court, in Bailey v. Drexel Furniture Co., struck it down. Congress passed a constitutional amendment in 1924 to give it the power to regulate child labor but ratification proved impossible. In 1938, Congress returned to the commerce power to regulate child labor and this time the Court, unanimously, upheld the statute. United States v. Darby, 312 U.S. 100 (1941).

This record-from 1916 to 1941-was an exceptionally lengthy dialogue between Congress and the Court, with the legislative branch eventually prevailing. The Court later admitted that "the history of judicial limitation of congressional power over commerce, when exercised affirmatively, has been more largely one of retreat than of ultimate victory." Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 415 (1946). The Court's decision last year in Boerne v. Flores, striking down the Religious Freedom Restoration Act (RFRA), raises a number of issues about judicial finality. In deciding that Congress had exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment, and hinting that the Court has the last and final word in deciding the meaning of the Constitution, the Court nevertheless left the door wide open for future congressional action. The reasoning and premises in the decision are often unpersuasive and internally inconsistent. The Court invites future congressional action by noting that there "must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." 117 U.S. at 2164. Does that mean that adjustments to a redrafted bill would pass muster? In comparing RFRA to the Voting Rights Act, the Court says that RFRA's "legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry." Id. at 2169. Is that the problem? If Congress, with findings, could identify recent examples of religious persecution, would RFRA be constitutional?

My CRS report includes other examples, but I will end with a dispute in 1970. The House Committee on Internal Security prepared a report on the honoraria given to guest speakers at colleges and universities. The study included the names of leftist or antiwar speakers and the amounts they received. The ACLU obtained a copy of the galleys and asked a federal district court to enjoin their publication. The court ruled that the report served no legislative purpose and was issued solely for the sake of exposure or intimidation. It ordered the Public Printer and the Superintendent of Documents not to print the report "or any portion, restatement or facsimile thereof," with the possible exception of placing the report in the Congressional Record. Hentoff v. Ichord, 318 F.Supp. 1175, 1183 (D.D.C. 1970).

The House of Representatives passed a resolution that told the courts, in essence, to step back. During the course of the debate, Members of Congress explained that it was not the practice of the House to print committee reports in the Record. Moreover, the judge's order "runs afoul not only of the speech and debate clause-article I, section 6 of the Constitution, but obstructs the execution of other constitutional commitments of the House as well, including article I, section 5, which authorizes each House to determine the rules of its proceedings, and requires each House to publish its proceedings." After the resolution was passed by a large bipartisan margin (302 to 54), the report was printed without any further interference from the judiciary.

This collision between Congress and the judiciary was unusually abrupt. For the most part, the legislative-judicial dialogue is more nuanced and subtle. In INS v. Chadha (1983), the Supreme Court struck down the "legislative veto" as unconstitutional. Congress no longer attempts to use one-House or two-House legislative vetoes to control the executive branch. On the other hand, it continues to use committee and subcommittee vetoes to monitor agency actions.5 Conclusions

At certain points in our constitutional history, there has been a compelling need for an authoritative and binding decision by the Supreme Court. The unanimous ruling in Cooper v. Aaron (1958), signed by each Justice, was essential in dealing with the Little Rock desegregation crisis. Another unanimous decision in United States v. Nixon (1974) disposed of the confrontation between President Nixon and the judiciary regarding the Watergate tapes. For the most part, however, court decisions are tentative and reversible like other political events.

There is no reason for Congress to defer automatically to the judiciary because of its supposed technical skills and political independence. Much of constitutional law depends on factfinding and the balancing of competing values, areas in which Congress justifiably can claim substantial expertise. Each decision by a court is subject to scrutiny by private citizens and public officials. What is "final" at one stage of our political development may be reopened at some later date, leading to revisions, fresh interpretations, and reversals of Supreme Court doctrines. Members of Congress have both the authority and the capability to participate constructively in constitutional interpretation.

Through this process of interaction among the branches, all three institutions are able to expose weaknesses, hold excesses in check, and gradually forge a consensus on constitutional values. Also through this process, the public has an opportunity to add a legitimacy and a meaning to what might otherwise be an alien and shortlived document.6

BIOSKETCH FOR LOUIS FISHER

Louis Fisher is a senior specialist in separation of powers with the Congressional Research Service of the Library of Congress. He began work with CRS in 1970 and served as research director of the House Iran-Contra Committee in 1987, writing major sections of the final report.

His books include President and Congress (1972), Presidential Spending Power (1975), The Constitution Between Friends (1978), The Politics of Shared Power (4th ed. 1998), Constitutional Conflicts Between Congress and the President (4th ed. 1997), Constitutional Dialogues (1988), American Constitutional Law (2d ed. 1995), Presidential War Power (1995), and Political Dynamics of Constitutional Law (with Neal Devins, 2d ed. 1996). His textbook in constitutional law is available in two paperbacks: Constitutional Structures: Separation of Powers and Federalism and Constitutional Rights: Civil Rights and Civil Liberties. With Leonard W. Levy he edited the four-volume Encyclopedia of the American Presidency (1994). He has twice won the Louis Brownlow Book Award, the encyclopedia he co-edited was awarded the Dartmouth Medal, and in 1995 he received the Aaron B. Wildavsky Award "For Lifetime Scholarly Achievement in Public Budgeting" from the Association for Budgeting and Financial Management.

5 These provisions typically require agencies to obtain the prior approval of the Appropriations Committees; e.g., 110 Stat. 3009-321 (1996). See Louis Fisher, "The Legislative Veto: Invalidated, It Survives," 56 Law & Contemp. Prob. 273 (Autumn 1993).

6 I provide further details on three-branch interpretation in the following works: Political Dynamics of Constitutional Law (with Neal Devins) (2d ed. 1996); American Constitutional Law (2d ed. 1995); Constitutional Dialogues: Interpretation as Political Process (1988); "Congress and the Fourth Amendment," 21 Georgia L. Rev. 107 (Special Issue 1986); and "Constitutional Interpretation by Members of Congress," 63 N.C. L. Rev. 707 (1985).

He received his doctorate in political science from the New School for Social Research (1967) and has taught at Queens College, Georgetown University, American University, Catholic University, Indiana University, Johns Hopkins University, the College of William and Mary law school, and the Catholic University law school.

Dr. Fisher has been invited to testify before Congress on such issues as executive spending discretion, presidential reorganization authority, the legislative veto, the line-item veto, the Gramm-Rudman-Hollings Act, executive privilege, executive lobbying, covert spending, the pocket veto, recess appointments, the budget process, the balanced budget amendment, biennial budgeting, and presidential impoundment

powers.

He has been active with CEELI (Central and East European Law Initiative) of the American Bar Association, traveling to Bulgaria, Albania, and Hungary to assist constitution-writers, participating in CEELI conferences in Washington, D.C. with delegations from Bosnia-Herzegovina, Lithuania, Romania, and Russia, and serving on CEELI "working groups" on Armenia and Belarus. As part of CRS delegations he traveled to Russia and Ukraine to assist on constitutional questions.

Dr. Fisher's specialties include constitutional law, war powers, budget policy, executive-legislative relations, and judicial-congressional relations. He is the author of more than 200 articles in law reviews, political science journals, encyclopedias, books, magazines, and newspapers. He has been invited to speak in Albania, Australia, Bulgaria, Canada, the Czech Republic, England, Germany, Greece, Holland, Israel, Macedonia, Malaysia, Mexico, the Philippines, Romania, Russia, Slovenia, Taiwan, and Ukraine.