IV: Lawmaking Procedures and a Second Orientation
Lawmaking and Rulemaking
I’m going to give a little preview of the research that I have been working on with PUSaKO here. First, I am writing a journal article about omnibus lawmaking in the United States and Indonesia with a focus on environmental impacts. Second, I am writing a comparison of procedures and practices for Regulatory Impact Assessment in the United States, Indonesia, and the European Union.
Omnibus Lawmaking
Omnibus lawmaking has become incredibly common in the United States. We almost take it for granted that lawmaking happens in hurried consolidated appropriations bills, often accompanied by numerous riders, on the eve of fiscal deadlines. This is a departure from a deliberative committee-driven process. We also have grown accustomed to mammoth measures forced through budget reconciliation to get around the Senate filibuster. These things are subject to standing rules of the House and Senate that determine what kind of amendments are appropriate for a bill and the length and quality of deliberation prior to a vote.
There is not really any substantial judicial review of how these measures are passed. As in King v. Burwell, the Supreme Court might complain that such laws are “inartfully drafted” and a challenge for statutory interpretation, but their due process review standard is “rational basis” of the content of the bill. In King v. Burwell it was also the scope of Congressional commerce and spending power. Our federal courts have generally hesitated to intervene in lawmaking procedures.
The conventional criticism is that there is very little safeguarding against provisions of bills favoring special interests subject to minimal debate. Those can usually survive rational basis review. Think of the landmark Lee Optical decision upholding a very puzzling licensing requirement about who can fit lenses to glasses frames based on conjectural reasoning. Certainly, pretty nice for optometrists, but questionable public health interest. What is in a lot of these 3000-page bills is brokered between the White House and Congressional leaders mostly behind closed doors. Proponents might say that is just an efficient way of doing lawmaking in a divided government. People will hold their nose and vote, even though they do not know what they are voting for, because theoretically everybody gets something out of the unclean compromise.
Omnibus lawmaking is new and very controversial in Indonesia. Law No. 12 of 2011 prescribes legislative procedures and stakeholder consultation by the DPR before voting on a bill. The Constitution of 1945 requires that laws be passed according to consistent procedures established by law. The Constitutional Court, asserting its power of judicial review, in 2020 ruled that a controversial Job Creation Law, which in a single stroke altered 79 legislative acts, was conditionally invalidated because the DPR skipped important steps in their lawmaking process. They did not rule on the constitutionality of the material provisions of the bill, many of which were objected to by labor and environmental organizations. The Constitutional Court has a hearing on the revived version of the law this week, which hopefully I will be able to attend.
Regulatory Impact Assessment
Meanwhile, we experienced something of a regulatory revolution in the late twentieth that created a lot of new requirements for agency rulemaking procedures. These have been promoted by good governance theorists in places like the Organization for Economic Cooperation and Development (OECD) and the World Bank. When you look at a proposed rulemaking in the Federal Register, a lot of what you are seeing is the product of procedural statutes like the National Environmental Policy Act (not the subject of my research) and Executive Orders that require agencies to conduct Regulatory Impact Analysis for actions that threaten significant economic impacts. The Office of Management and the Budget (OMB) is responsible for coordinating much of the RIA process between agencies.
The basic steps are problem identification, identification of alternatives, cost-benefit analysis for each alternative, selection of alternative, and post-implementation evaluation and monitoring. Public consultation and revision of proposed rulemaking fits in as well. All OECD countries have implemented something along these lines, perhaps with spotty implementation and some differences in methodology. I will not get into how the EU does this here, but I’ll just say they seem under pressure to go to great lengths of transparency in their regulatory processes because of continuing questions about sovereignty. The European Commission hires thousands of language specialists to translate most EU products into a staggering 27 languages. Indonesia has piloted RIA is some ministries but not fully implemented this practice or looped it into the Lawmaking Law, which does however require stakeholder consultation.
What is odd about this is that in the United States we would appear to have robust demands of our agency rulemaking processes and weak demands of our Congressional lawmaking processes. You get quixotic results where an agency will spend months or years drafting a rule and holding stakeholder discussions, only for Congress to overturn the resulting rule with the stroke of a pen in a hurried spending or budget reconciliation package.
A good example of this is oil leasing in the Alaska National Wildlife Refuge (ANWR) pursuant to the Trump administration Tax Cuts and Jobs Act (TCJA) in 2017, which was an omnibus budget reconciliation deal. The Act required the government to open ANWR to oil development. The Bureau of Land Management then went through the trouble of conducting a full-length environmental impact statement pursuant to NEPA evaluating the (extensive) environmental costs for each proposed alternative. But the “no development” alternative was always off the table because Congress required the agency to lease at least 400,000 acres for oil and gas development. According to President Trump in a statement before the Republic National Convention he “fought for” drilling in ANWR in the TCJA after a “friend in the oil business” told him about how it was a symbolic conservative energy issue since the Reagan administration.
It ended up being kind of a flop. BLM started auctioning tracts in 2021 just as Trump was leaving office. They did not get any bids from major oil companies. The big banks announced before the auction that they would not be financing any oil and gas development projects in a sensitive, remote conservation area with questionable actual oil reserves and major challenges for building infrastructure.
Padang to Jakarta
I expect to complete this research when I’m back in Padang in August. I just moved to Jakarta and started with the Constitutional Court.
Last week Indonesia celebrated Eid Al Adha, the commemoration of Abraham’s willingness to sacrifice his son at divine command. I have learned in the Islamic tradition it is his son is Ishmael, son of Hagar, whereas in Genesis it is Isaac, son of Sarah. A key piece of the celebration is a feast accompanied by the sacrifice of a cow with leftovers donated to the hungry. In Indonesia, Eid Al Adha is celebrated on two days. On Wednesday, the Muhammadiya religious organization celebrated Eid Al Adha, and on Thursday the Nahdlatul Ulama religious organization celebrated the holiday.
I would be very out of my depth in trying to describe the doctrinal differences between these religious organizations. But I understand that in addition to how they calculate the religious calendar there are major differences in their approaches to religious education. Many parents in Indonesia send their children to Islamic boarding schools belonging to one or other of these organizations.
Orientation to the Constitutional Court
I arrived in Jakarta on Saturday. I started at the Constitutional Court on Monday. My supervisor is Pan Mohamad Faiz, assistant to Deputy Chief Justice Saldi Isra. Mr. Faiz is also the Editor-in-Chief of the Constitutional Review, an international law journal published by the Constitutional Court. Each of the nine justices has two staff assistants.
Today I met with the research and library services department to learn about court information services. In addition to having two assistants each, the justices have access to a full-time staff of central research assistants who provide legal research to all the justices related to issues on their docket. Court information services also conducts meetings with the public to educate about the work of the Constitutional Court and publishes journals as well as scholarship produced by the justices and their staff. I have been reading very helpful guides written in English on Indonesian Constitutional Law, by Deputy Chief Justice Saldi Isra and Pan Mohamad Faiz, and the Constitutional Court and Human Rights Protection in Indonesia by I D.G. Palgnuna, Saldi Isra, and Pan Mohamad Faiz.
I’m really impressed by the accessibility of the Constitutional Court and the depth of their public
outreach. The Constitutional Court, unlike the US Supreme Court, has original jurisdiction to decide questions on the constitutionality of laws passed by the DPR. Any Indonesian citizen can file a petition which the Court will consider, although the Court does have standing doctrines that resemble those of the US federal courts. There is even a help window in the Constitutional Court with dedicated staff to help people file their petitions. The information staff explained that the Court, much like our Supreme Court, does not have any capacity to execute its orders. Part of their approach is to provide outreach to support compliance with their opinions and improve public understanding and perception of the Court’s function of judicial review.
The reserach staff is excited when I tell them that I'm from William & Mary because eight of their own are conducting a study program at William & Mary right now, and will later continue their research into the American legal system in Arlington, Virginia. We are having a little exchange right now, with me in Jakarta learning from the Constitutional Court, and their staff learning at my University. If they happen to be reading this blog, I wish them a great experience and hope to share observations one day!
Symposium
I have a new research project that I will discuss more next week. The Court is hosting the Sixth Indonesian Constitutional Court International Symposium from August 9-11 in Jakarta. The theme for the event is a Comparative Perspective on Constitutional Court and Judicial Independence. I am trying to prepare a proposal and draft for a deadline next Friday on Budgeting and Financial Independence of the American Judiciary.
This is a subject very close to access to justice that I am passionate about. In my years working with language access, it was really hammered into me that providing limited English proficient persons with interpreters is a “core function of the courts.” The 14th Amendment due process clause requires that people with a need be provided with interpreters in criminal cases. The Civil Rights Act has been interpreted, certainly by the Department of Justice, to require language access services for many other court services and civil proceedings.
“Budget cuts” are not an excuse to withhold a constitutional obligation of the courts. Some amount of spending is not discretionary. The same is true of the right to counsel and speedy trial guarantees. But interpreters, public defenders, travel time, software and technology services, the attention of competent judges, court facilities and all the other things incidental to getting a fair and impartial adjudication of your legal rights cost money that must be appropriated from legislatures that need to be won over. So how do you do that? And what can courts do if the legislature cuts into core functions or tries to intimidate the judiciary with punitive budget cuts?