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.
Posted 9:46 PM by Gerard N. Magliocca [link]