When questions arise about the constitutionality of a proposed piece of legislation, such the healthcare legislation currently pending in Congress, Members of Congress frequently deflect them by saying that any constitutional issues will be dealt with by the courts at a later time. Senator McCaskill, for example, responded to a question about the constitutionality of the individual mandate by offering assurances “that if anything in this bill is unconstitutional, the Supreme Court will weigh in.” Senator Conrad similarly suggested that the issue was a technical legal one outside of his responsibility.
This approach, however, is misguided for several reasons. First, Members of Congress have a responsibility, independent of the judiciary, to uphold the Constitution. They take an oath to uphold the Constitution, and it is difficult to see how this oath is consistent with passing legislation without regard to its constitutionality.
As Donald Morgan explains in Congress and the Constitution (1966), Congress traditionally has taken quite seriously its obligation to consider constitutional questions. What Morgan calls the “judicial monopoly theory” (the idea that only the courts have the power and responsibility to address constitutional issues) was unknown to early Congresses and constitutional thinkers. Even those who argued for judicial primacy in constitutional interpretation acknowledged Congress’s role. Justice Story, for example, stated that “if a proposition be before Congress, every member of the legislative body is bound to examine and decide for himself whether the bill or resolution is within the constitutional reach of the legislative powers confided to Congress.”
Second, Congress cannot rely on the courts to determine all constitutional issues. Some such issues (e.g., impeachment, determining the rules of congressional proceedings) are recognized to be “political questions” exclusively committed to the decision of the political branches. Even ordinary constitutional issues, moreover, can only be resolved by the courts if they arise in a justiciable case or controversy. For example, it is not clear that anyone has standing to challenge certain aspects of the healthcare reform legislation, such as the preference given to
Finally, and perhaps most importantly purposes of the healthcare bill, it is a mistake to equate a measure’s ability to survive judicial review with its constitutionality. I refer here not to the possibility that the courts may be wrong, but to the nature of the review that the courts undertake. As Professor Volokh points out, when the issue is whether a law exceeds Congress’s enumerated powers, the courts don’t decide the issue de novo. Instead, they defer to Congress’s own judgment on the issue, overturning that judgment only in circumstances where it would be unreasonable for Congress to reach the conclusion that the measure in question falls within a particular enumerated power.
Thus, if Members of Congress leave the constitutionality of healthcare reform to the courts, the question of constitutionality becomes largely circular. Members will defer to the judgment of the courts, and the courts will defer to the (supposed) judgment of Congress. Every exercise of power becomes constitutional, without anyone ever taking responsibility for explaining why.