Jamal Greene on How the World Would Not End if the Supreme Court Did Not Tell Congress What to Do on ACA

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10 Responses

  1. guest says:

    Judge Posner advocated years ago that the Supreme Court should apply (or at least argued that he would apply if he were on the Court) a “clearly unconstitutional” reversal standard. With respect, I fail to see what is new or insightful about this essay.

  2. Clarity and perspective (in this case, historical) are sufficient justification for the post. It rates high on my novelty scale, too, since it cuts to the chase with brevity. Insight is displayed by Greene’s choice of theme, and his identification of the biggest issue. This reader values apt use of ‘instances’ much as he does the use of epigraphs to introduce a book or chapter…

  3. Guest says:

    So the same rule would apply to a “controversial piece of national legislation” that, say, banned abortion? Certainly “reasonable people” can believe that Roe v. Wade was wrongly decided.

    And the same rule would have applied in the cases during the last administration when the Court invalidated some congressional legislation dealing with Gitmo and the war on terror?

    Right??? Or is a belief in the constitutionality of legislation only reasonable when it is liberal legislation? I think we all know how that will work out

  4. Anna says:

    I agree with Guest that a deferential “reasonableness” standard for assessing the constitutionality of federal legislation is highly problematic. It seems to me that those who support the ACA (I am one of those supporters) are getting carried away in the heat of the moment. A federal ban on abortion or a federal statute banning gay marriage is not outside the realm of possibility. It would be frightening to me if the USSC could deem them “reasonable” and thus constitutional.

  5. JoeJP says:

    The “reasonableness” standard is that when something is reasonably w/i the powers of the federal government, it should be upheld, unless it violates some liberty interest, burdens a minority group in some fashion, threatens republican government itself and things of that sort.

    Abortion rights grows out of various express and implicit liberties in the Constitution as do equal protection of same sex couples and so forth. OTOH, unless we are making some sort of substantive due process argument here, the PPACA is a reasonable application of the commerce and tax power & does not violate the above criteria.

    If mere “reasonableness” review of EVERYTHING is the rule, yes, I would firmly oppose that, but it’s hard to believe that is what is set forth.

  6. Professor Greene carefully notes:
    “It is no answer to point to cases like Brown v. Board of Education or the many other instances in which the court has correctly overturned acts of state legislatures, local officials, or federal prosecutors. The court has an important role to play in ensuring that state and local actors and unaccountable individuals invested with government authority comply with federal law. That role is especially important where rights of minorities are at stake. But this is not true of the Affordable Care Act. And Congress is different, which is why Oliver Wendell Holmes wrote in 1913: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”

  7. Brett Bellmore says:

    Fancy that; Somebody who was nominated and confirmed by federal officeholders thought that it was his job to enforce the Constitution against state office holders, but that federal office holders should be free to violate it without judicial interference.

    You’d almost think this was the sort of Justice a President and Senate would pick, if they found being bound by a Constitution a tad confining…

  8. Anon says:

    Many “reasonable” people (including several current USSC justices!) believe that the right to choose abortion is not a fundamental right protected by the US Constitution. The same can be said for the rights of same-sex couples. A federal statute banning abortion or same-sex marriage could easily pass muster under a deferential “reasonableness” standard.

    I also am having a hard time understanding why individuals necessarily require more protection from government interference at the state level than at the federal level. Certainly that was the case during the civil rights movement with respect to Jim Crow laws, etc., but why assume that is going to be the case across-the-board?

  9. PrometheeFeu says:

    I disagree. Because of the much greater resources and much larger territory over which it has control, the federal congress doing something wrong can do a lot more harm than the states. At least there is a meaningful possibility of exit from the states. Furthermore, your vote for federal officials is in general much more diluted than your vote for state or local officials. That means federal officials are less politically accountable.

    So of course, the United States would not come to an end just because acts of Congress could not be declared unconstitutional. But the United States as a constitutional democracy would come to an end when federal power stopped being restricted by courts and the constitution. I come from a country where for a very long time there was very limited ability to challenge the constitutionality of acts of parliament. Unpopular minorities have been persecuted (never explicitly mind you) and many fundamental freedoms such as freedom of speech have been severely restricted.

    What’s the standard that you are using to determine that the Court made bad calls? Sure, we all agree on Dredd Scott. (Though if it did precipitate the Civil War which precipitated emancipation, that’s not such a terrible thing) But I don’t cry over the New Deal policies, many of which were design to restrict output with the predictable result (go ask Krugman what he thinks of production quotas) of harming recovery. Similarly, Citizens United sounds like a great win for individual freedom. Perhaps I am wrong, but your analysis looks a lot like: “Court sides with liberal policy = good. Court sides against liberal policy = bad.”

    “Holmes was right on both scores. Passing a major, controversial piece of national legislation is a heavy lift. It requires the support of 218 members of the House, 60 senators, and the president.”

    This country is home to 300 million people. The fact that 279 people can make the rules for 300 million people is a very scary thought and throwing a couple road blocks in their way always sounds like a good idea.

  10. BB says:

    I think I understand his point, however, there is one key premise that, if proven false or even grossly inaccurate, probably undermines (or at least weakens) his theoretical argument. That is, the notion that the Court should be deferential to “reasonable” legislation signed by the President is conditioned upon the idea that (1) there has been vigorous debate within the Congress with respect to the proposed legislation and (2) those congresspersons reflect the interests of their constituents. Clearly (1) is usually false as evidenced by the fact that most bills are passed without actually being read by most in Congress (hell, often not even by the “drafters” when the bills come pre-packaged from outside sources like ALEC). Re: (2), unless individual constituents no longer matter, or are insignificant when juxtaposed to corporate interests and other deep-pocketed lobbyists, (2) is a fallacy as well (e.g., Dodd-Frank. Patriot Act).