In a recent post, co-blogger Orin Kerr argues that the “presumption of constitutionality” accorded to congressional legislation weighs in favor of the federal government in the individual mandate cases. 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.
If such a presumption had been applied in those cases, the Court would probably have had to reach a different result. For example, in Lopez there was a plausible argument that a statute banning the possession of guns in a school zone was constitutional under previous precedents that the Lopez majority did not wish to overturn, because such possession has important economic effects. Justice Breyer did a good job of articulating this point in his dissenting opinion.
How can we reconcile those cases where the Court applies the presumption of constitutionality with those where it doesn’t? The cynical answer is that the Court applies the presumption in cases where it wants to uphold the challenged statute and ignores it in cases where the majority wants to strike the law down. I suspect that this factor really does account for much of the variation between cases.
Less cynically, one 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.
The key question to ask is whether this case is more like Lopez, Morrison, and Boumediene, or whether it is more similar to those cases where the Court has applied the presumption, such as Watson v. United States v. Watson, a case cited by Orin. For what it’s worth, I think Watson is a clear example of a case where the majority thought that the challenged statute was constitutional on the merits, with or without a presumption of constitutionality. The Court emphasized that it was supported by common law principles and by many decades of precedent.
This, of course, suggests that the presumption applies only to those statutes that the courts are likely to uphold anyway. However, such an approach is consistent with the way the Court has applied the presumption over the last several decades. It’s hard to point to any cases where the Court has used the presumption to uphold a congressional statute that it was otherwise inclined to strike down. As currently used by the Court, the presumption of constitutionality is mostly a way to seal the deal on a case the government was likely to win anyway. It turns a strong case into a slam dunk. But it can’t be used to transform a probable loss for the federal government into a win.
Obviously, it is still possible to argue that the mandate should be upheld even without applying the presumption. The point of this post is simply that the presumption adds little or nothing to the federal government’s case.
UPDATE: It turns out that the Supreme Court did briefly mention the presumption at the start of its opinion in Morrison v. United States [HT: Hans Bader]. I apologize for the error. At the same time, the presumption seems to play little if any role in the Court’s analysis of the decision. It is not mentioned at all after this one line near the beginning: “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….. 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.”