More on the Presumption of Constitutionality

In his post below, my co-blogger Ilya Somin concludes that courts should not apply the presumption of constitutionality to the individual mandate:

In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the legislature is passing judgment on the scope of its own authority. When a person or political institution is acting as a judge in its own case, its conclusions should not be considered presumptively valid. The presumption is also particularly improper in an era where most members of Congress of both parties routinely fail to take their constitutional responsibilities seriously and usually just rely on the courts to sort out constitutional issues, as many did at the time the individual mandate itself was enacted.

Nevertheless, Orin is right in pointing out that some Supreme Court decisions say that a presumption of constitutionality should be applied to congressional legislation. On the other hand, many Supreme Court decisions, including Morrison and Lopez, strike down federal legislation without any reference to the presumption. The presumption was also conspicuous by its absence when the Court struck down large parts of the Detainee Treatment Act in Boumediene v. Bush.

. . . . [O]ne might argue that the justices apply the presumption in cases where they think the statute is supported by well-established precedent, but not where Congress has gone beyond the bounds of both previous decisions and the text of the Constitution itself. Applying this logic to the mandate case, I think it can be said that the presumption does not apply if you believe that the mandate is an unprecedented expansion of federal power that goes beyond previous precedent and is not supported by the text of the Constitution. Alternatively, if you think that the mandate is fairly similar to previous statutes that have been upheld by the Court or that it is authorized by the text of the Constitution, the presumption would apply.

Ilya’s analytical framework does not appear to me to be based on existing caselaw. First, some of the cases in which Ilya contends that the presumption was not mentioned actually recited it quite clearly. For example, United States v. Morrison says:

Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U.S., at 568, 577—578 (Kennedy, J., concurring); United States v. Harris, 106 U.S., at 635. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress’ power under Article I, §8, of the Constitution.

It’s true that not every decision recites the legal point that there is a presumption of constitutionality. But then not every decision recites the legal point that courts have the power of judicial review, and yet we don’t consider the absence of that explicit point to be some sort of implicit overturning of Marbury v. Madison.

Ilya’s effort to reconcile the cases into a view that the presumption applies depending on whether one thinks a statute is “unprecedented” and beyond constitutional text strikes me as both inconsistent with the cases and based on a misunderstanding of the presumption. On the first point, consider one of Ilya’s examples: the statute struck down in Boumediene. That staute was hardly unprecedented. It was actually just restoring the prior law before the Supreme Court creatively read its statues a few years earlier. Nor did it create some obvious textual problem. The Court struck it down, but I think not based on the theory Ilya suggests.

On the second point, some of the confusion may concern what it means to say there is a presumption of constitutionality. In my experience, discussions of presumptions and burdens of proof generally involve three possible issues:

1) Who has the burden of proof,
2) How high is the burden of proof, and
3) What kind of evidence or argument can be used to meet the burden of proof.

My sense is that the presumption of constitutionality is mostly just about question (1); Who has the burden of proof. The cases sometimes talk about (2), but usually only in a vague sense (the presumption is “strong”, etc.). In my view, it’s pretty much impossible to dispute that there is a presumption of constitutionality in the Question 1 sense: It has been repeated in hundreds of cases over two centuries. It’s true that Supreme Court practice is not consistent on Questions 2 and 3, but the law strikes me as extremely clear on Question 1.

One final point. Ilya suggests in comments that if the presumption of constitutionality is only about Question 1, then it isn’t very important in a practical sense. I don’t think that’s right, though, in part because it rules out one of the approaches offered of the mandate opponents. In my experience, many of the arguments against the mandate include some sort of reference to the burden of proof being on the government. Some mention that the burden must be particularly steep. As a result of the presumption of constitutionality, however, I don’t think those statements are correct.

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