Thursday, December 24, 2009

What If the "Nebraska Compromise" Is Unconstitutional?

Mark Tushnet

One issue that's been overlooked in what I've read about the Republican Attorneys-General's discussion of a legal challenge to the Nebraska Compromise is this: What if they're right that it's unconstitutional? (I'll get to my views on the merits toward the end of this post.) Unless there's a provision in the statute (if/when it's enacted) saying that the Nebraska Compromise is not severable from the remainder of the statute, winning the constitutional challenge simply leads to the next question: Does the statute as a whole survive if the Nebraska Compromise is unconstitutional?

That's a standard question about severability, and there are (roughly) two approaches to answering it. (I'm assuming -- I might be wrong -- that there's no provision specifically saying that the Nebraska Compromise is inseverable.) One focuses on what is sometimes called the "integrity" of the statute: Would the statute accomplish its primary goals if the unconstitutional provision were excised? If you take that approach, it seems to me that the answer is easy: Of course it would. (The answer would be different were, for example, the individual mandate held unconstitutional.) The other approach is intentionalist: Would Congress have enacted the statute if "it" knew that the provision was unconstitutional? In the present context that question takes a quite peculiar form, and I confess I don't know even how to begin thinking about it. The problem is that if we focus on the very last stage, when the statute is enacted (if it is), the answer will certainly be Yes, Congress would have enacted the statute without the Nebraska Compromise. Sure, Senator Nelson would have voted against the statute, but there are (at the moment) 59 other votes in favor. Yet, focusing on the very last stage seems odd, because we're pretty confident that the bill would never have reached that stage without the Compromise in it, because Senator Nelson wouldn't have voted for cloture. All I can say is that I wouldn't be confident that "winning" the constitutional challenge to the Nebraska Compromise will mean that the entire statute falls.

On the merits of the challenge, I'm skeptical, but I want to raise a point related to earlier postings about constitutional moments. My skepticism is a predictive one, which seems to me quite widely shared. One would be reasonably confident that under constitutional law as articulated by the Supreme Court up to late 2009 the Nebraska Compromise "is" constitutionally permissible. But, of course, there are -- there always are -- arguments from within existing constitutional law supporting the opposite conclusion. And it's always within the power of five members of the Supreme Court to adopt what they believe to be the correct interpretation of the Constitution even if that interpretation is different from, or in tension with, the tenor of the rest of constitutional doctrine. I think the way to think about the predictive question is this: We should be thinking about the question, Do five members of the present Supreme Court want to place themselves in the position of the Supreme Court majority as it was in 1935-37? If they do, the ticking of the clock of constitutional moments might get a bit louder.

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