Evaluating Whether A Proposed Bill Exceeds Congress’s Enumerated Powers

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.

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