Remanding to congress: The Supreme Court's new "on the record" constitutional review of federal statutes

In recent years, the fate of federal statutes has increasingly turned on the contents of their formal legislative records. The Supreme Court has shown a new willingness to find statutes unconstitutional because their legislative records do not support the factual judgments that justify congressional action. In this Article, Professors Bryant and Simeone trace the development of the trend toward increased judicial scrutiny of legislative records in recent Supreme Court rulings on the constitutionality of federal statutes. They then critique the Court's new approach, arguing that it is not only inconsistent with precedent, but also fundamentally ill advised most importantly because it constitutes a constitutionally suspect intrusion on congressional investigative and legislative procedures. Finally, the authors consider whether heightened judicial review of the legislative records of federal statutes is a defensible means of preventing Congress from overstepping the constitutional bounds of its authority. Concluding that this is an inappropriate way to restrain Congress, the authors briefly discuss alternative methods of ensuring that congressional action has a legitimate constitutional basis.