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Federalist Society Panel on the Supreme Court Term:

Yesterday, the Federalist Society held a webcast panel on the Supreme Court term, featuring co-conspirator Orin Kerr, my GMU law faculty colleagues Nelson Lund and Neomi Rao, prominent DC lawyers David Rivkin and Gene Schaerr, and yours truly. Law nerds everywhere will be happy to know that the webcast is now available for your viewing pleasure here. Among other things, I discussed Wilkie v. Robbins and the tension between the "judicial restraint" and textualist/originalist strands in conservative jurisprudence. Near the end of the panel, Orin and I debated the question of whether courts should give statutes enacted by Congress a "presumption of constitutionality." As longtime readers can probably guess, my answer was an emphatic "no," and Orin's a "yes."

Cornellian (mail):
I'd be inclined to give them a presumption that the facts supporting the constitutionality of a statute are as Congress thinks they are, but not any kind of legal presumption that a statute was constitutional.
6.29.2007 5:38pm
dwlawson (www):
I'd support the presumption that Congress doesn't know its north end from its south end given their track record. But I'm no lawyer.
6.29.2007 7:37pm
Ben Snitkoff:
What worries me about the court is it's inconsistency when it comes to interpreting the findings of congress. Sometimes it'll say that congress was wrong, and strike down the statute. Other times they'll say congress was right and strike down the statute. And then, every now and then, they'll say that congress was dead wrong and uphold the statute. I don't mean to imply that the only gauge of an act's constitutionality should be the findings of fact on which it's based, but if congress based a statute on findings that were incorrect, upholding the statute on those grounds is preposterous.
6.29.2007 11:25pm
therut:
What in hell does Congress know about the Constitution?????????? I mean these people elected have nothing better to do. Public service my ass. If they belived in that they would take no salary and get the heck out of Dodge instead of making a career of telling the peons what to do. Give me a break.
6.30.2007 12:57am
Brett Bellmore:
I have no problem with a presumption that laws are constitutional, so long as it's a rebuttable presumption. The problem is when, all too often, the Court simply doesn't care about the rebuttal. Such as with this insane "enrolled bill" rule, where you can prove that a law wasn't really adopted constitutionally, and the Court simply doesn't care.
6.30.2007 8:42am
Cornellian (mail):
To be fair to the Court, it's not like the enrolled bill rule was adopted because they don't care whether a bill was validly enacted or not. They pointed out, quite reasonably, that the alternative would be far worse - no one would know whether any statute was valid until that issue had been lititgated and discovery on that issue would be a total nightmare.
6.30.2007 12:30pm
ReaderY:
States have unenumerated 10th Amendment powers to do what they want unless specifically limited, so their statutes are constitutional unless a limit is specifically proven to hold. The United States, on the other hand, only has specifically enumerated powers, so its statutes are unconstitutional unless they are proven authorized by one of the enumerated powers.
6.30.2007 11:46pm
David M. Nieporent (www):
In the abstract, of course Congressional laws should be presumed constitutional; they're a co-equal branch of government, tasked with obeying the constitution just as much as the Supreme Court is. The problem is that many members of Congress admit that they abdicate this responsibility, saying that they'll leave it up the Court to decide. If they're not going to purport to try to conform to the constitution, then there's no reason to grant them the benefit of a presumption.
7.1.2007 5:09am
Brett Bellmore:
"They pointed out, quite reasonably, that the alternative would be far worse - no one would know whether any statute was valid until that issue had been lititgated and discovery on that issue would be a total nightmare."

There's your problem right there: A Court that thinks a little litigation, (Which could be averted by basic transparency and honesty: There'd be little reason for litigation is they weren't abusing the "enrolled bill" rule.) is "far worse" than the Constitution being violated.

Their job is to uphold the Constitution. There is NOTHING the Supreme court should regard as "far worse" than the Constitution being violated. NOTHING. And certainly not a bit of litigation.
7.1.2007 8:08am
Cornellian (mail):
"They pointed out, quite reasonably, that the alternative would be far worse - no one would know whether any statute was valid until that issue had been lititgated and discovery on that issue would be a total nightmare."

There's your problem right there: A Court that thinks a little litigation, (Which could be averted by basic transparency and honesty: There'd be little reason for litigation is they weren't abusing the "enrolled bill" rule.) is "far worse" than the Constitution being violated.


A "little" litigation? You could subpoena every member of the House and Senate to ask them how they voted on the theory that their vote wasn't properly recorded. And what happens if this lawsuit comes up 50 years after everyone had been complying with the statute?
7.1.2007 3:38pm