Holder on the Presumption of Constitutionality

From the Attorney General’s letter to the Fifth Circuit:

Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of Acts of Congress.

2. In considering such challenges, Acts of Congress are “presumptively constitutional,” Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Court stressed that the presumption of constitutionality accorded to Acts of Congress is “strong.” United States v. Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221,346 U.S. 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that the “congressional judgment” at issue was “entitled to a strong presumption of validity”). The Supreme Court has explained: “This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.” Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221, 346 U.S. at 449.

I’m pretty surprised that Holder would quote language suggesting that a strong presumption of constitutionality obtain to acts of Congress because of the “deliberate” constitutional “judgment” of Congress when at issue is a law for which there is substantial evidence that there was no such deliberate judgment (and that’s besides the fact that virtually no one knew everything that was in the bill before they voted on it). When I recently recounted various on-point quotes, I concluded, “something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.” Indeed.

Putting aside what one thinks of the ACA, why exactly should the courts strongly defer to implicit constitutional conclusions by Congress when, in fact, there was not only no deliberation on the issues, but when leading supporters of the legislation explicitly denied they thought the Constitution mattered? (A law, I should not, could of course still be upheld even if the courts don’t give a strong presumption of constitutionality to it).

UPDATE: To be clear, while some of the remarks by legislators dismissing constitutional concerns about the ACA were particularly egregious, my point is not limited to the ACA. Congress, whether controlled by Democrats or Republicans, in fact almost never gives serious constitutional consideration to what it does. When the Supremes largely got out of the business of reviewing Congress’s economic regulations, they justified their action on the grounds that Congress is more competent to make the relevant constitutional determinations (e.g., what is “necessary” for the regulation of interstate commerce) than they are. Even if that’s true, Congress’s competence only matters if Congress in fact tries to make such determinations in a serious way. It doesn’t. So I don’t see the justification for a policy of “strong deference” to Congress on constitutional matters that is not, for example, given to state legislatures.

The real reason may be that “we’ve been afraid since 1937 that Congress will retaliate against us, while the state legislatures can’t.” If that’s the gist of it, though, there’s no reason to pretend that there’s some “principle” behind the Congress’s special presumption.

Further Update: I’m rushing off to prepare for the holiday, but it’s worth noting that the Supreme Court’s strong deference to Congress as a “coequal branch” is very selective, occurring in the context of challenges to the scope of Congress’s enumerated powers–ironically, arguably the last place you’d want to defer–and not, say, in First Amendment, criminal procedure, and other contexts. And the leading USSC advocate of absolute deference to Congress’s understanding of the scope of its Commerce power, Justice Breyer, has exhibited no such deference to the other “coequal” branch, the executive, when it comes to the scope of its national security powers (or to Congress, either, for that matter).

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