The Presumption of Constitutionality Revisited

In his response to my post on the mandate cases and the presumption of constitutionality, Orin Kerr argues that the presumption applies to all cases where courts consider the constitutionality of congressional legislation.

Orin recognizes that the Supreme Court majority in fact fails to even mention the presumption in many controversial cases where it strikes down federal laws, such as United States v. Lopez and Boumediene v. Bush. I would add to that list such other cases as Reno v. ACLU, New York v. United States, and Printz v. United States – the latter two being major federalism cases. The Court did briefly mention the presumption at the start of its opinion in Morrison v. United States (I corrected my error on that point in an update to my previous post), but then completely ignores it in its actual analysis of the legal issues in the case. Thus, it seems clear that the Court routinely ignores the presumption in cases where it strikes down federal laws.

Orin suggests that the Court may be applying the presumption even in cases where it goes unmentioned. That is theoretically possible, but highly unlikely in reality. If the Court were applying a presumption of constitutionality in closely contested cases such as Lopez, Boumediene, Printz, and New York (all 5-4 or 6-3 decisions that were highly controversial), one would expect the justices to at least mention that fact. Unlike judicial review, the presumption and its application are not uncontested background assumptions that nearly all jurists agree on. Rather, the degree of deference due to Congress is one of the main contested issues in federalism and separation of powers cases, including the ones listed above.

In my previous post, I suggested that the Court chooses not to apply the presumption in situations where the majority believes the challenged statute “gone beyond the bounds of both previous decisions and the text of the Constitution itself.” Orin responds that that wasn’t true in Boumediene because the statute struck down in that case “was actually just restoring the prior law before the Supreme Court creatively read its statues a few years earlier.” Orin’s interpretation of the statute may be correct. But it’s not the view taken by the Supreme Court majority, which had interpreted the prior law as not allowing the kinds of military tribunals that were explicitly permitted by the statute struck down in Boumediene. Even more importantly, the prior statute was itself a recent innovation arising from the War on Terror. In the Supreme Court majority’s view, it was not supported by previous judicial precedent or by longstanding practice. The majority opinion actually refers to what it calls “the lack of a precedent on point.”

Finally, Orin suggests that the presumption of constitutionality is merely about “who has the burden of proof,” and wrongly interprets me as saying that a burden of proof makes no difference. What I actually said, in the comments to my previous post was this:

If the presumption merely means that those challenging a law must present some proof of some kind that it’s unconstitutional, then it makes little difference. Realistically, no court is likely to strike down a law without at least some showing of that type. However, those who argue for the presumption usually imply a significantly higher burden of proof, such as that the law must be upheld unless its unconstitutionality is unambiguously clear.

If Orin believes that the presumption requires only the sort of minimal burden of proof I described in my comment, then the difference between our views has little practical significance. I still think that the presumption doesn’t apply at all [in some cases] (as it didn’t in Lopez, Printz, Boumediene, etc.). But there is little meaningful difference between not applying it at all, and interpreting it to require some minimal proof of some kind. Realistically, no federal court is likely to strike down a law if the challengers have no argument at all against it. If, on the other hand, Orin would require a more substantial burden, things are different.

UPDATE: I should emphasize that the point is not just that the Court failed to explicitly mention the presumption of constitutionality in the cases I listed. Even more importantly, it also failed to apply the doctrine with or without mentioning it, even though it would clearly have been relevant if it did apply. Nowhere in these opinions is there any indication that the majority was deferring to Congress or presuming that Congress’ statute was constitutional.