Understanding the ACA Arguments
mae.kuykendall at law.msu.edu
Fri Mar 30 12:04:37 PDT 2012
I suppose, re the extent of reading by Justice Scalia or members of Congress, Congress routinely works that way. Some small groups work on every part of a bill, but not everyone looks at all parts of the most complex bills. But for a nine-member Court to sweepingly overturn such a product should call for real immersion in the whole thing. If that is beyond the individual capacity of the justices, that should tell them something.
I recall there is some name for the idea that the energy and effort put into creating something complex dwarfs what it takes to destroy it. Without even remotely proposing an analogy to Supreme Court review resulting in a finding of unconstitutionality, that idea may have been discussed in connection with the effort required to destroy the World Trade Center, compared with the process that had gone into building them. Perhaps the idea relates to entropy. The idea was that destruction has the upper hand.
>>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 3/30/2012 12:12 PM >>>
Of course few members of Congress, perhaps none, read through the entire bill. Deference to congressional staffers who probably didn’t read the entire bill but put it together like a jigsaw puzzle seems inappropriate. On the other hand, the bill does represent the work of a co-equal branch and should be given a degree of deference for that reason, even if the members of Congress did not directly or thoughtfully address the constitutionality of the entire scheme.
One difference between the judgment of a member of Congress as to constitutionality and the judgment of a member of the S. Ct. is that a member of the Court may feel more constrained by stare decisis. A member of Congress may exercise a more independent judgment, especially where the Court would permit Congress to act in ways that the member of Congress believes exceed Congress’s authority under the Constitution.
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mae Kuykendall
Sent: Friday, March 30, 2012 8:47 AM
To: Steven Jamar; Daniel O. Conkle; Sanford Levinson
Cc: CONLAWPROFS professors
Subject: RE: Understanding the ACA Arguments
The many recitals in cases about the strong presumption favoring the constitutionality of an act of Congress already suggests that the Court embraces a notion of deference guided by something other than radical turns in the constitutional road on which Congress has traveled. A novel, dogmatic view of a body of precedent on which a structure of a century of law for a complex society has been predicated, issued by a 5-4 ideological decision, fits that concept poorly. I should think Marbury didn't mean government by sudden judicial dogma. The joking claim of Scalia that he didn't want to read the 3,000 pages speaks volumes about the apportionment of primary institutional responsibility for making law for complex economic problems. mk
>>> Sanford Levinson <SLevinson at law.utexas.edu> 3/29/2012 4:33 PM >>>
I’m with Dan on this one. Steve’s position implies that a judge is entitled to think there is only one right answer to complex constitutional questions and that anyone who disagrees is simply wrong. Deference in this case admits that the reasonable people can disagree and that Congress is owed some respect, even if we disagree with its conclusion. It’s different, of course, if we have reason to believe that Congress simply never seriously debated the issues at hand or, like the infamous Arlen Specter, collectively said “sure this is unconstitutional, but my political ambitions dictate voting for it in the hope that the Court will strike it down.”
Consider the conclusion of Thomas Jefferson’s memorandum to George Washington on the constitutionality of the Bank of the United States (and whether, therefore, he has a duty to veto it). Jefferson did believe the Bank was unconstitutional, but he concluded the memo as follows:
It must be added, however, that unless the President’s mind on a view of everything which is urged for and against this bill, is tolerably clear that it is unauthorized by the Constitution; if the pro and the con hang so even as to balance his judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion. It is chiefly for the cases where they are clearly misled by error, ambition, or interest, that the Constitution has placed a check in the negative of the President.
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