I much enjoyed Randy’s and my exchange at Heritage today. I’m afraid I don’t have a write-up of my views, and probably won’t; but I did want to mention one broader point (on which I suspect Randy and I don’t disagree).
When people debate whether a proposed bill (or even an enacted statute) exceeds Congress’s enumerated powers, some often point to the Court’s precedents: The Court has held that such laws are constitutional, so that should be the end of the constitutional debate (or very nearly the end of the constitutional debate). But I don’t think this is right.
The premise of much of the Court’s expansive view of Congressional powers is deference to Congress. “In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.” “[W]e must defer to a congressional finding that a regulated activity affects interstate commerce “if there is any rational basis for such a finding,” and we must ensure only that the means selected by Congress are ‘”reasonably adapted to the end permitted by the Constitution.”‘”
So it’s up to Congress, the Court says, to decide in the first instance whether the law fits within an enumerated power — whether it serves the general welfare, or sufficiently affects interstate commerce, or is necessary and proper for regulation of commerce, or the like. We Justices won’t reject Congress’s judgment unless it’s irrational. But this presupposes that members of Congress will decide whether, in their view, the law fits within the federal government’s enumerated powers — not just whether it’s rational to so believe, but whether they actually think this is so. And that decision generally isn’t dictated by the Court’s past precedents, which decided only whether past Congressional decisions were not unreasonable, not whether they were right.
Now of course members of Congress might well conclude that the Constitution does give Congress broad powers to regulate. They might read the text, which is often ambiguous (consider the phrase “necessary and proper”) broadly. They might well view American legal tradition as part of the current constitutional framework, so that something that was often done by past Congresses (and deferred to by past Courts) becomes constitutional even if its constitutional validity as a matter of text and original meaning is questionable. Or they might take a broader view still. One can debate which interpretive approach is right, but that’s not my point here.
My point here is that members of Congress should decide whether a proposal violates the Constitution as they understand it — and if they do so decide, they can’t be faulted just on the grounds that “the Court said this is constitutional.” In the scenarios I discuss here, the Court has generally simply said that it will defer to a wide range of Congressional judgments about whether a law is within Congress’s enumerated powers; it hasn’t purported to tell members of Congress how they should view those powers. This also applies to citizens: Public arguments that some proposed bill exceeds the federal government’s powers and that members of Congress should therefore oppose it can’t be adequately met with “But the Court said this is constitutional.”
Note, incidentally, that this position is quite consistent with the view that Congress usually should defer to the Court’s judgments that Congress’s powers are constrained in certain ways. (There’s a debate about that, but I need not resolve it here.) In those cases — for instance cases discussing limits imposed by the First Amendment, the Ex Post Facto Clause, and even the few limits that the Court has enforced under the enumerated powers doctrine — the Court has indeed reached an independent judgment that the Constitution forbids something. That judgment may well be entitled to great or even nearly absolute deference from Congress. (Even those who think that Congress has its own interpretive obligations often agree that for various institutional reasons Congress should pay great respect to a coordinate branch’s judgment about what is actually forbidden by the Constitution.) But when the Court’s judgment is simply that it defers to Congress’s judgment, there’s nothing for Congress to defer back to: Rather, it’s then especially clear that members of Congress must decide for themselves whether their proposals are within their enumerated powers.
J. Aldridge says:
Usually that was always the case. Congress would spend a great deal of debate on whether a proposed law was constitutional or not. Today they don’t. Basically the court and congress passes the buck back-and-forth over whether something is constitutional or not.
Neither congress or the court is a objective source of what is constitutional because both has been completely taken over by the rules of politics.
December 9, 2009, 5:00 pmrj says:
Sounds like a distinction without a difference… Reps and Sens who dislike a bill say it’s unconstitutional “because I think it is” and the ones who are for it say it is, also “because I think it is.”
To the extent that there is a debate, it will be held on the same fourth-grade civics level as all constitutional debates are these days in the popular media, namely with the assumption that all the founders agreed on what all the words in the document meant and that they were infallible demigods who had an opinion on every public policy question that ever has or could ever come down the pike.
They’ll vote as they always will, and the words “constitutional” and “unconstitutional” will be synonyms for “good” and “bad.”
December 9, 2009, 5:01 pmpmorem says:
So both Congress and the Court are depending on the other to uphold the Constitution?
It sounds to me that they’ve both forgotten their jobs.
December 9, 2009, 5:04 pmMartinned says:
Tobacco Advertising Case (Case C-376/98):
Enumerated powers are a wonderful thing, if you can hang on to it. If Congress avoids any and all responsibility for making sure it doesn’t approve anything unconstitutional, maybe the Courts should step in more than they are currently doing.
December 9, 2009, 5:04 pmbadlaw says:
Was this videotapped? Will it be uploaded on their website?
December 9, 2009, 5:05 pmtroll_dc2 says:
If they vote to support those proposals, are they not implicitly making that decision? How would you enforce a rule requiring members of Congress to state expressly whether a proposed measure is constitutional and to provide reasons? Does the Court really have the power to tell Congress how to conduct its affairs?
December 9, 2009, 5:08 pmWayne says:
It seems to me the Court distinguishes between the means and the ends of Congressional enactments. If the end is within Congressional power, the Court won’t uphold a challenge to the means that Congress chooses to adopt unless it runs afoul of some independent constitutional limitation. The Court will examine less deferentially whether Congress’s goal is within its constitutional powers. If the end, ensuring that everyone has access to affordable heathcare, withstands court scrutiny, isn’t the means by which Congress chooses to pursue that goal entitled to deference?
December 9, 2009, 5:15 pmChris Travers says:
Given how frequently BLATANTLY unconstitutional laws are passed for the sole purpose of having the court strike them down, it would seem to me that one can take a vote for a bill as a vote of confidence in its Constitutionality.
I suppose the People could insist that their congressmen only vote for Constitutional legislation, but I think the People have abdicated such responsibility as well.
This doesn’t bode well for our republic….
December 9, 2009, 5:20 pmShelbyC says:
FIFY
December 9, 2009, 5:23 pmPersonFromPorlock says:
So, a ‘points system’ for congressmen, just like for drivers: vote for a law found to be unconstitutional in any part and you’re assessed one point. Accumulate five points and you’re out of government, right away.
It won’t happen, of course, but what a way to create a Congress of constitutional scholars overnight!
December 9, 2009, 5:25 pmrj says:
ShelbyC: oh, ye of little faith. Ninety percent of congress will be re-elected barring the “dead girl/live boy” situation, so that’s not the concern. It’s not re-election they’re worried about, it’s TV time and what lobby shop they’ll land at after they retire or are redistricted.
December 9, 2009, 5:35 pmaf says:
I suppose the People could insist that their congressmen only vote for Constitutional legislation, but I think the People have abdicated such responsibility as well.
Shame on the People!
December 9, 2009, 5:36 pmnone says:
CON LAW = POLITICS
December 9, 2009, 5:47 pmOff Kilter says:
So the SC broadly defers to Congress, and Congress should therefore be presumed to deliberate on issues of constitutionality in their debates on bills passed into law.
How does this square with the common occurrence, last summer, of Representatives and Senators facing outraged constituents who dared to ask them where in the Constitution the authority for healthcare legislation lay? My recollection is that Barney Frank, Nancy Pelosi, Steny Hoyer, and others basically blew such questions off, as if they either thought the question irrelevant or had no notion that they were supposed to be able to answer such questions.
Seems to be that’s prima facie evidence that the Court’s deference is based on an obvious legal fiction unrooted to any recent historical examination of the facts.
December 9, 2009, 6:54 pmmls says:
I take it that Professor Volokh’s point is that Congress has an obligation not to exceed its constitutional powers, not merely to pass whatever laws it wants. Congress, however, often seems to be unaware of this obligation. Many members are under the impression that whatever can survive scrutiny by the Supreme Court is therefore constitutional.
If Members of Congress were routinely asked to give independent justifications for the constitutionality of legislation, perhaps they would take their obligations more seriously.
December 9, 2009, 9:06 pmepignosis says:
Geez, Eugene. What would the mandate be necessary for? Can they not regulate the providers of health care without requiring my participation? It is only necessary if they intend to get me to pay for other people’s care. If everyone pays for their own care, why would they need my money?
December 9, 2009, 9:21 pmMartinned says:
Everybody paying for their own care kinda defeats the purpose of insurance, don’t you think?
December 9, 2009, 9:26 pmepignosis says:
Insurance, fine. Why do I have to participate?
December 9, 2009, 9:28 pmOFT says:
The legislature is not designed to interpret the laws; they make the laws. The Judiciary interprets laws and General Hamilton told us how they were to interpret the laws:
[T]here is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution. [bold face mine]
Alexander Hamilton, Federalist #81
What an indictment it is on our people to allow our representatives to trample underfoot the Constitution.
December 9, 2009, 10:46 pmA. Zarkov says:
In an insurance situation, the premium paid must reflect the risk of the event being insured against. Thus premiums for term life insurance should roughly follow the force of mortality curve. We wouldn’t charge a 25 year old the same premium for a one year policy as an 80 year old– would we? The cost of medical services is somewhat more complicated, but that curve gives one a rough guideline as to costs.
What’s called “medical insurance” is more akin to income transference, where the chronically well subsidize the chronically sick, the young subsidize the old, and the careful subsidize the careless. Someone might ask “why should I have to help pay for an IV drug users liver transplant? If this were not true then why not let people form their own cooperatives to insure against unpredictable and high losses. We do that with homeowners insurance, why not medical insurance? To give everyone an incentive to provide for their insurance we should not allow medical bills to be dischargable in bankruptcy.
December 9, 2009, 11:46 pmDavid Schwartz says:
epignosis: Because we know of no way for you to opt out. If you want to propose such a scheme, go ahead. If it works, there will be no need for an individual mandate.
December 10, 2009, 2:13 amPersonFromPorlock says:
If the policy of the Court is to defer to Congress except when there’s an egregious violation of a constitutional prohibition – and I think there must be a prohibition involved since Congress’s power to interpret would swamp anything less – then we have a constitution which delegates all powers to the Congress except those which are specifically prohibited. That turns the whole idea of delegated powers on its head.
December 10, 2009, 5:19 amtroll_dc2 says:
Is the alternative workable? That alternative would allow the Court to review, almost routinely, anything that the Congress enacts to test for whether it fits within the delegated powers. The problem is that the Court cannot do so except after a considerable delay. There has to be something that causes a case to be brought, then the case is filed and litigated, afterward there is an appeal, and finally the Court gets the matter. Years can pass, and meanwhile the life of the country has to go on. So when the Court issues a decision deciding that all that had gone on after the enactment of the particular statute was unconstitutional, things get quite messy. You will see this if the Court decides that the theft of honest services statute is unconstitutionally vague or otherwise invalid.
December 10, 2009, 12:15 pmtroll_dc2 says:
It should also be asked how we got away from the original scheme. I strongly suspect that it was expediency–things were thought to have to be done, and there seemed no other way to do them but for Congress to pass a law. Even before the New Deal, the federal government had expanded far beyond what the framers envisioned.
December 10, 2009, 1:41 pmTwirlip says:
Yes, but also due to an excessively deferential view towards the Courts own prior rulings.
At one point, the Court interpreted the Constitution. Then it interpreted it’s own interpretations. A few hundred years of this and you get to the point we are at today, where “constitutional law” has only a passing acquaintanceship to the Constitution.
I agree that they should. But the idea that only the Court may pronounce on constitutional matters is very widespread, and it originated with the Court.
December 10, 2009, 2:29 pmChris Travers says:
troll_dc2:
Unfortunately that’s not the problem. If you want to see the problem look at the governments in this world that do exactly that. Iran comes to mind…..
However, it would be nice to require SOME sort of public review of Constitutional issues of every bill that comes before the floor. Maybe by the OLC?
December 10, 2009, 6:49 pmepignosis says:
I must be missing your point.
December 10, 2009, 9:37 pm