These kinds of laws, known as “bracket bills” in Texas, are necessary because many state constitutions, including both Michigan’s (art. IV, sec. 29) and Texas’s (art. III, sec. 56), forbid the Legislature from enacting “local or special acts”, or laws that apply only to one city or one person. By referring only to a locality’s population, the legislature can pass a bill that skirts the constitutional prohibition while addressing the specific needs of that community. Usually, so long as it is theoretically possible for any city to grow into or out of the bracket, the bracket is valid.

One view of bracket bills is that they allow the legislature to address a public policy issue unique to one locality without having to take a “one-size-fits-all” solution that may prove unworkable for other localities. Another view is that they impermissibly allow a legislator or group of legislators to micromanage a locality’s affairs; legislative courtesy often demands that members not delay or defeat another member’s local legislation.

Finally, from a drafting perspective, the situation facing Detroit could have been avoided if the initial legislation provided that “this Act continues to apply to a municipality described by this Act and continues to operate regardless of any change in the municipality’s population” or similar language reflecting local drafting conventions. As the Metro News noted, the next largest city in Michigan is Grand Rapids with a population of about 188,000, there’s still no danger of any other city catching up to Detroit soon if such language is added.

Members like them because it allows them to present a nicely-prepared parchment with a nice official seal to their constituents and make them feel special. As Ayn Rand observed, if everybody is special, then nobody is. And that’s just about how bad it’s got. I haven’t seen a resolution commending a child for enrolling in kindergarten, but I could certainly see a Member introducing one in the Texas House.

Members rarely oppose their colleagues ridiculous resolutions because they know that, someday, they’ll have one of their own. Most go unread; that’s how Representative Tom Moore of Waco convinced his colleagues in the Texas House to adopt a resolution on April 1, 1971, honoring Albert DeSalvo of Massachusetts for “his noted activities and unconventional techniques involving population control and applied psychology.” DeSalvo is better known as the Boston Strangler, who killed 13 women between 1962 and 1964. Although Moore said it was joke, the Austin American-Statesman quoted another Member’s misgivings: “It just proves you could pass anything in the House.”

Texas House Speaker Pete Laney tried to stop the flow of superfluous resolutions by replacing them with a simpler congratulatory or memorial “motion,” which would be printed in the journal and on a simple certificate, but Members didn’t seem to like those motions as much–probably because their constituents didn’t know what a motion is–and the motion practice died a-borning.

One of the biggest knocks against these kinds of measures is the expense of processing them. They are accorded the dignity of other resolutions, which means they are individually introduced, referred to committee, placed on a calendar that is printed and distributed, and read on the floor–often by title but many times in full, especially if the honoree, the honoree’s family, or the decedent’s family is present. Many are prepared by the research staff of the Texas Legislative Council, which distracts them from performing other, more meaningful tasks for Members. Once passed, the Chief Clerk prepares one or more copies on parchment with seals and ribbons for the Member to present afterwards. Accordingly to Texas Legislature Online, there were 3,140 resolutions introduced in the Texas House in the 2009 regular session; accounting for those that actually transact business such as adopting the House rules and suspending limitations on conference committees, I’d bet that 3,000 of those were puffery. (Although I am pleasantly surprised that my birthday last year was designed as “Texas Friendship Day [to] encourage all Texans to reflect on the meaning of friendships in their own lives.”) While no one has publicly estimated the expense of resolutions, I do know that several House Administration chairmen have privately lamented the cost. I personally think they trivialize the House, the Member, and the recipient, but I don’t think the practice will die out so long as Members think the resolutions help them stay in office.

For your records, the proposed new rule language would ban any measure that “expresses appreciation, commends, congratulates, celebrates, recognizes the accomplishments of, or celebrates the anniversary of an entity, event, group, individual, institution, team or government program; or acknowledges or recognizes a period of time for such purposes.”

Perhaps an even better idea would be to sit for six weeks, with a three-week break in between sessions and no sittings during the summer or in December unless exigent circumstances dictate otherwise. Most state legislatures meet for a few months and then adjourn for the rest of the year, or as in Texas, for the rest of the biennium.

This is an idea that comes up regularly in the political science literature and just about every time the Legislature faces huge deficits. Budget writers don’t like it for reasons unknown; when House Appropriations Chairman Rob Junell proposed a wholesale revision of the Texas Constitution in 1999, he tellingly did not include a provision for annual budget sessions. One reason may be that legislators don’t want to have to come back; since they only make $600 per month, plus a per diem when in session, they would have to take away more time for their everyday jobs that pay the bills. Employers don’t look too kindly on Members always taking off to go to Austin; at least they can be assured it’s only every two years. To expect employers, business partners, clients, etc., to understand that you’re going to be gone for the first three months of every year might be a little too much.

The only time in modern history that the idea has been seriously forwarded was the proposed Constitution of 1975, which failed at the ballot box. So while Burka’s idea makes some sense, I don’t see it happening anytime soon.

However, as James Oliphant writes, “[t]o Kagan, at first blush, the question must have seemed absurd, maybe even a joke. ‘It sounds like a dumb law,’ she replied off the cuff. Then, realizing Coburn was serious, she segued into sort of the windy, contextual, cautious analysis that she has employed to answer most of the questions asked of her over the last two days. But she had fallen into Coburn’s trap by answering more like the law professor she is than by simply responding like most people would. She never just said: ‘Of course it can’t.’”

Of course, as better explained by scholars such as William Popkin, a court does legislate when it undertakes discretionary judging — that is, when it undertakes, as it must, the task of fitting statutes into “their past and future.” And this “modest competence” aids, rather than retards, “good government.” Instead of offering insipid answers, why can’t Kagan, the former dean of Harvard Law School, give an honest answer that accounts for this? Especially when she herself decried the confirmation kabuki dance?