Indiana Law Journal

Document Type


Publication Date

Winter 2018

Publication Citation

93 Indiana Law Journal 159 (2018)


As Part I of this Essay will show, arguments for limiting Congress’s authority to do nothing are not readily found in history, text, or constitutional structure. Part I concludes, however, that the need for establishing some constitutional limits on congressional inaction is nevertheless compelling because of the seriousness of the dangers involved. Accordingly, Part II goes on to advance an approach that would limit Congress’s power to do nothing in certain circumstances. Specifically, Part II proposes an approach that would limit Congress’s power to do nothing based on the type of power that Congress is (or is not) exercising. Congress could not refuse to act when the exercise of the power in question is necessary for the government to function, such as appropriations or appointments; but it may refuse to act on matters such as legislation that do not raise functionality concerns. Part III addresses some possible objections to this thesis. Part IV presents a brief conclusion.

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.