Tuesday, June 05, 2012

Omnibus Bills and Judicial Review

Gerard N. Magliocca

The pending decision about the Affordable Care Act got me to thinking about how Congress or a state legislature could make it more difficult for its statutes to be invalidated on constitutional grounds.  Perhaps somebody else has said what I'm going to say (that's a hazard of blogging), but here goes.

In the absence of a line-item veto, legislatures can coerce the executive to sign a controversial provision into law by putting it into an omnibus bill that contains lots of popular things.  In effect, a dare is made that a President or a Governor would rather swallow one bad part rather than block many good parts.  This dare does not always work, of course, and legislation structured in this way cannot always pass, but omnibus bills do tilt the balance of power in favor of popular assemblies.

Why can't the same be done with respect to courts?  Suppose Congress knows that a certain provision (say about campaign finance) will be constitutionally suspect.  They could bundle it with lots of unrelated matters and insert a non-severability clause providing that: "If any portion of this legislation is found unconstitutional by the Supreme Court, then every other portion becomes inoperative." In that case, the SG would solemnly tell the Justices that striking down the contested provision would deprive orphans of milk, stop the construction of a dam in Utah, and so on.  This doesn't preclude the Court from acting.  It just makes it harder.

As far as I can see, there is nothing unconstitutional about this tactic at the federal level.  (At the state constitutional level there may be impediments to omnibus legislation.)  There are political checks on the abuse of this sweeping authority by Congress.  Many members will not want to risk their pet projects by tying them to an uncertain constitutional fight.  Moreover, you need the President (and perhaps 60 senators) to go along.  If you jump those hurdles, though, then the Court would face an all-or-nothing choice in constitutional litigation.  (An as-applied challenge might not come within a given non-severability clause, but that would depend on how the legislation was drafted.)

In the context of health care, this framing of the issue might have made a big difference.  There may be five votes to strike down the individual mandate. It's less likely that there are five votes to strike down the entire 2,000-plus-page statute.  If the Court's only choice was between this and upholding the individual mandate, the result might be different from what we will see in a few weeks.


The Health Care Mandate and Judicial Pay Raise Act of 2012?

The Supreme Court would invent a new constitutional severability doctrine to prevent this from happening.

To follow up on lefty68*, SCROTUS [sick!] might find in Article III an implicit "necessary & proper" clause to maintain judicial superiority over the elective branches.

*Does this alias suggest a fellow survivor of Richard Milhous Nixon and the resulting Watergate? If so, welcome aboard.

I'm guessing it would only take once or twice of the Supreme Court giving the middle finger to this strategy by striking the whole bills down anyway before Congress would get disenamored of it.

@Shag: Agreed, although exactly what constitutional provision is used is somewhat irrelevant. Someone invented, out of whole cloth, a theory under which the PPACA was unconstitutional, and the Supremes may buy it. If Congress ever does what Prof. Magliocca is suggesting, someone will invent from whole cloth a legal theory to make it unconstitutional, and the Supremes will almost certainly buy it.

(As to the alias, I was indeed alive during the Nixon administration and am alive now, so I survived. I'm hoping we can all survive the Romney administration should there be one. Thanks for the welcome!)

The "political checks" appear to thus far dealt with this issue though perhaps actual examples might put the matter in doubt.

The PPACA has some largely "unrelated" stuff but the main concern was "related" stuff, like benefits that were the "quid" to the coverage provision's "quo."

This is might put the courts on guard but this remove a screw the whole thing falls down is a bit different than "don't uphold this bill of attainder, grandma will starve."

It would be interesting to consider various types of hot button issues, such as some blatantly unconstitutional thing that Breyer might be very concerned about.

"The pending decision about the Affordable Care Act got me to thinking about how Congress or a state legislature could make it more difficult for its statutes to be invalidated on constitutional grounds."

I take it that accomplishing this end by the expedient of only passing bills which are clearly constitutional is off the table?

Lots of people think that the Affordable Care Act is clearly constitutional.

"Clearly constitutional" is a bit vague.

"Lots" of people think that anything they think is a good idea is constitutional. In fact, that's how "lots" of people define "constitutional".

Brett, Prof. Balkin et. al. did not defend the constitutionality of the PPACA based on it being a "good idea" but on substantive constitutional arguments.

The fact you don't agree with them doesn't change this.

Joe, Balkin's particular schtick is to resort to standard forms of living constitutionalist reasoning, only calling himself an originalist while he does it.

The particular trick Jack resorts to is abstracting high level principles from the Constitution, (At a sufficiently high level of abstraction, the only thing the document says is, "Have a government.") and then to apply those principles in place of the actual details of the Constitution.

In the specific instance, he derives from several clauses of the Constitution the very high level principle that the federal government is supposed to deal with issues of national scope. And from this deduces that the federal government gets to regulate anything declared to be an issue of national scope, even if it might, for instance, not technically be "commerce among the several states".

Similarly, if Jack wants to make excuses for the President waging a war over the objections of Congress, the principle he finds is that the federal government defends the nation, and he can just blow off the delegation of the power to declare war to Congress.

It's not really all that clever once you pick up on it. and I don't think I would characterize it as "substantive constitutional arguments".

This comment has been removed by the author.

If you don't like his views, try someone else. Charles Fried, e.g., who wrote a book underlining Congress has various limits but does not think the PPACA is constitutional merely because it is a "good idea."

I think your summary of Prof. Balkin is stereotypical, but since he is but one person (down to the author of the OP) who disagrees with you for reasons other than it being a 'good idea,' in fact many think it is not in various respects, it is but a small pt.

For those interested, Prof. Amar has a good column out, again not saying the PPACA is constitutional merely because it is a "good idea" and that Congress has some unlimited power to do anything.

Prof. Barnett failed with "Mary Jane" Rauch to undo "Wick-burn" in his efforts to "Restore" the "Lost" Constitution, even unable to convince numero uno originalist Justice Scalia of locally grown weed not involving the commerce clause. So substituting broccoli for ganja will now convince Scalia of need for a change, amounting to a constitutional eruption of Mt. Etna proportions? (Query: Might smoking pot serve as a balm for those chronic sufferers of "Wick-burn"?)

The "political checks" appear to thus far addressed this problem though perhaps real illustrations might put the issue in question.

The PPACA has some mostly "unrelated" products but the priority was "related" products, like advantages that were the "quid" to the protection provision's "quo."
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"Please prove you're not a robot" doesn't seem quite to work. A version (as in some places) with clearer words would seem okay.

@ Lefty68:

Take a peek at the WaPo June 8th article by Carl Bernstein and Bob Woodward: "40 years after Watergate, Nixon was far worse than we thought."

The "spirit of Tricky Dick" lives on with the GOP SuperPacs!

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