Setting Congress Up to Fail

In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice Department for prior approval. This short essay explores one problematic feature of the Court’s analysis: its refusal to consider the legislative record as adequate because it was created to justify the coverage formula after the fact, rather than to facilitate deliberation on the coverage formula before a decision had been made. This reasoning essentially imports from administrative law a rule called the Chenery principle, and as this essay explains, it does so without justification. The differences between administrative and legislative decision making processes compel different treatment by the courts, and treating legislative records like administrative ones, in essence, asks of Congress something it is institutionally ill-equipped to perform. It sets Congress up to fail.

River Recreation Management in Western States: Results of a Recreation Management Survey

This Capstone represents a qualitative analysis of survey responses concerning river recreation management policies and techniques in the Western United States. Respondents were asked about management topics including permits and fees, monitoring, enforcement, resource management, recreational experience, and current and future demand for whitewater rafting. Responses with consistent results include those for questions concerning permits for commercial uses, justification of fees, and enforcement, while responses with variation in results were received for questions concerning permits for private uses, agency self-sufficiency, monitoring, and use capacity. Most respondents do not expect a significant increased demand for commercial or private boating in the next five years. Respondents that do expect an increase do not see a need for additional commercial outfitters.