Why Doesn't Congress Enact More Default Rules?

By Mike Dorf

My latest Verdict  column examines what's at stake in the Supreme Court case of Douglas v. Indep. Living Ctr. of So. Calif., Inc.  The case poses the question whether private parties can sue a State for failing to satisfy its obligations under the federal Medicaid statute.  Traditionally, the answer has been yes under the doctrine of Ex Parte Young, but another line of cases says that there are no private rights of action to enforce statutes unless the statutory language manifests Congressional intent to create such private rights of action.  The column explains, among other things, that the issue is small in principle because it only involves a default rule: Through clear language Congress can always recognize, or deny recognition to, a private right of action, whatever default rule the Court sets.  I also note, however, that here, as in other contexts, the default can be sticky.  The default matters because it is costly to overcome legislative inertia.

I stand by my analysis in the column but I want to raise a question here: Why doesn't Congress simply enact legislation switching the default?  "Well, that's a stupid question," Dorf, I can practically hear my readers thinking.  If it's difficult for Congress to act in order to recognize, or deny recognition to, private rights of action for any particular statutory provision, it's super-difficult for Congress to act in order to change the default rule applicable to thousands of statutes.  But I think that's not necessarily right.

The stakes outside of any particular context might be low. Lobbyists who would be moved to act to prevent adoption of a private right of action for any particular law might not mobilize against a general change in the presumption simply because they might not notice it. Or they might think it easier to seek a special rule for the statute they care about, and not fight the general change. As evidence, consider that the Dictionary Act has an impact on the construction of every federal statute there is, but that very little lobbying appears to focus on changing it. Matters like rules of construction SHOULD be fertile ground for lobbyists because they can get what they want by flying below the radar screen of public opinion. But they're apparently so far below the radar screen that even the lobbyists haven't yet discovered them. Before they do, it would behoove Congress to enact a bunch of progressive default rules. Actually, the time to have done that would have been in the two years when there was a Democratic majority in both houses of Congress. So all that's needed to get my proposal enacted is a time machine!