William Marshall proposed that congressional inaction threatening “the ability of the government to function” should be “subject to constitutional scrutiny.” This article is a response to Marshall’s proposal and offers a potential solution based on alternative dispute resolution rather than the courts. When faced with seemingly insurmountable differences, Congress must look to alternative dispute resolution to reach a breakthrough on critical issues. This paper proposes the creation of a Mediation Office to assist Congress in coming to these breakthroughs. This mechanism could also possibly intervene when the issue is between Congress and the President. Part II of this article will elucidate Marshall’s argument and clearly define the issues that would trigger the Mediation Office to act. Part III will lay out the author’s proposal for how the body would be created, how it would operate, and it will defend why Congress, rather than another branch of the government, is best suited to remedy the issue of legislative deadlock. Part IV will both justify the legality of the body and set forth the benefits that could come of it. Finally, part V will address some potential objections to the author’s proposal and attempt to assuage some of these concerns. Part VI will conclude by reminding readers our government is not a watch to be wound and left to its own devices. As new challenges arise, our system should adapt to meet them. In this case, mediation may be the long-awaited solution to breaking the logjam.
Nicholas W. Archibald,
A Reaction to Systemic Inaction: Breaking the Congressional Logjam Where It Counts,
22 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol22/iss1/5