A Tweet Storm about Congress, Healthcare Reform, and Pathological Partisanship in America

Yeah, I know, tweet storms are supposed to be on Twitter. This one is, except I didn’t “thread” my tweets properly, as several people, including Paul Rosenzweig, patiently explained to me. I will try to do that next time. Anyway, for the moment, I am presenting the thread here, even though a bunch of tweets outside of Twitter read like some sort of weird haiku.

This is a tweet storm about Congress, healthcare reform, and pathological partisanship in America 1/31

I will cite Congress and the Constitution, ed. by Neal Devins and @kewhittington, and Congress’s Constitution by @joshchafetz 2/31

An important question addressed by these books is how Congress can restore itself to its proper role as a co-equal branch of government 3/31

Congressional dysfunction may be both cause and effect of what started as polarization and now is pathological partisanship in US 4/31

Pathological partisanship is when interests, policies & ideas are secondary to goal of defeating & dehumanizing an opposing tribe 5/31

Winning for winning’s sake is illustrated by spectacle of zero sum struggle between “repealing and replacing” vs. “fixing” Obamacare 6/31

Even though the exact same bill could be characterized either way 7/31

In such an atmosphere small wonder that Congress is viewed so unfavorably 8/31

When major political figures, media personalities and interest groups push perpetual conflict w/ no compromises, Congress looks useless 9/31

Sen. McCain said these “bombastic loudmouths” “don’t want anything done for the public good. Our incapacity is their livelihood.” 10/31

Congress’s institutional advantage is mediating conflict, not resolving philosophical questions or designing brilliant policies 11/31

“Congress is an institution skilled at reaching specific agreements that allow all parties to preserve their abstract commitments” 12/31

That was a quote from Elizabeth Garrett and Adrian Vermuele 13/31

Similarly Sen. McCain: “Merely preventing your political opponents from doing what they want isn’t the most inspiring work.” 14/31

“There’s greater satisfaction in . . .not letting [differences] prevent agreements that don’t require abandonment of core principles.” 15/31

There are tools Congress can use to bridge differences without requiring congressional factions to renounce their ideological views. 16/31

One is federalism, which allows states to develop their own approach to healthcare reform. 17/31

Another is the use of sunset provisions, which allow Congress to adopt reforms on an experimental basis. 18/31

Devins says sunsets improve congressional factfinding & incentivize Congress to monitor its empirical assumptions (p. 237). 19/31

As Chafetz notes, sunsets also enhance congressional power vis a vis the executive 20/31

Without sunsets, major legislation (like ACA) can be a one-time transfer of power to POTUS, who thereafter shapes policy. 21/31

Another mechanism to forge compromise on healthcare reform would be to hold hearings on issues beyond health insurance 22/31

Such as irrational & discriminatory pricing by medical & drug cos., abuse of tax-exempt status by “nonprofits,” and med liability. 23/31

Judicious use of these tools could help forge a broader compromise than now seems possible. 24/31

This will take time, however, & Congress must take action now to stabilize ins mkts & ensure that both sides have incentive to bargain 25/31

Congress could do this by providing temporary funding for cost-sharing subsidies currently in litigation before D.C. Circuit. 26/31

Importantly, funding for these subsidies would sunset, making it clear that admin cannot continue paying them unless Congress acts 27/31

This would be an “extremely skinny” bill, which might need to be fattened to attract R support 28/31

But if cong. leadership can attract substantial D support for this bill, it would set the table for a serious bipartisan reform effort 29/31

If Ds refuse to support bill or make concessions, leadership has unilateral options to employ. 30/31

But for the moment, let’s close w @SenJohnMcCain again: “What do we have to lose by trying to work together to find . . . solutions?” 31/31

 

Miranda, Congress and the Boston Marathon Bombing Suspect

A few years ago the Obama Administration considered asking Congress for legislation to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.” I argued that existing Supreme Court precedent did not preclude the courts from giving deference to such a statute, particularly if were supported by reasoned fact-finding and/or included alternative methods of ensuring the voluntariness of statements made by suspected terrorists.

The administration, however, did not pursue such legislation. Instead, it apparently adopted internal guidance to clarify how existing legal rules regarding custodial interrogations should be applied in the case of terrorism suspects. The New York Times published a short FBI memorandum it obtained on the issue (I assume that there are more extensive legal memoranda which have not been made public).

The positions set forth in that memorandum may now get a real life test due to yesterday’s arrest of one of the suspected Boston Marathon bombers, Dzhokhar Tsaraev, age 19. According to this article by Josh Gerstein: “’No Miranda warning to be given’ now, a Justice official told POLITICO Friday night. ‘The government will be invoking the public safety exception.’”

The FBI memorandum states “agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” This would seem to most obviously cover questions about the location of any explosive devices or materials of which Tsaraev may be aware. More controversially, agents may ask him about other potential plots, other individuals who were involved in planning or executing the Boston Marathon bombings and contacts that he or his brother have had with foreign terrorist organizations.

Furthermore, the FBI memorandum says that “[t]here may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.” This disadvantage of invoking this further exception (lets call it the “intelligence exception”) is that the fruits of the interrogation would likely be inadmissible in court.

To further complicate matters, the bombing suspect is relatively young and badly wounded. Thus, apart from issues of unwarned custodial interrogation, Tsaraev’s lawyer (when he gets one) will probably argue that any statements by his client were involuntary due to some combination of his age, his medical condition, any medications he is receiving, explicit or implicit threats with regard to pain medication, etc.

As a practical matter, therefore, the FBI is probably all in with regard to questioning Tsaraev. In other words, once the decision is made not to Mirandize him, the agents have to proceed as if nothing that he says will likely be admissible. This may not be much of a problem given the amount of evidence that it had accumulated prior to taking the suspect into custody. Accordingly, law enforcement may feel free to be unusually aggressive in its questioning, which could raise some of issues regarding “coercive interrogations” that arose during the Bush Administration.

It would be hopelessly naïve to suggest that Congress could have obviated all of these problems by enacting legislation to define the scope of permissible interrogations for terrorism suspects. Nevertheless, it is worth noting that Congress, rather than simply complaining about executive branch actions after the fact, could actually take a stab at writing the rules that would govern these interrogations. I guess that would be hopefully naïve.

 

 

The Tillmans on Shall and May

            Nora and Seth Tillman have published this fragment on the constitutional meaning of  “shall” and “may.”   They contend that in 18th Century America the word “shall” was used more often in a non-obligatory sense, ie, to indicate futurity as we would use the word “will,” than it would be today.  This may be important in construing certain constitutional provisions where the use of “shall” is arguably non-mandatory.   

For example, the Appointments Clause provides that the President “shall” nominate and appoint Ambassadors, Ministers and Consuls, Supreme Court Justices, and all other officers of the United States.  The word “shall” in this sentence could be  mandatory (must), directory (should) or permissive (may).  The Tillmans argue that we should not be too quick to assume that the word was used in the mandatory sense, as 18th century usage would be more consistent than current usage with the directory or permissive senses (though it seems to me unlikely that the framers would have used “shall” rather than “may” had they intended the Clause to be permissive).

A Final Word on Congress and Miranda

           From my last three posts on Miranda (see here, here and here), one can see the argument that would be made by opponents of a “public safety” exception statute.  They will say that Miranda’s requirements are “constitutional” in nature; ergo any exceptions are similarly of constitutional dimension.  Since it is the Court, not Congress, which decides what the Constitution means (at least in the mind of judicial supremacists), Congress’s view of the proper scope of the public safety exception is of little relevance. 

            It is certainly possible that the Court will take this view, but I don’t think that its precedents require it to do so.  There are at least two possible grounds on which the Court could uphold a public safety exception statute: (1) that Congress’s reasoned factfinding is relevant to the constitutional test as set forth in Quarles; and (2) that stare decisis does not require the Court to strike down statutes which do not attempt to reverse the general rule established in Miranda, but merely establish reasonable exceptions thereto. 

            Consider the following from the Court’s recent opinion in Citizens United v. FEC, 558 U.S. __ (2010): “When Congress finds that a problem exists, we must give that finding due deference, but Congress may not choose an unconstitutional remedy.”  By analogy, the Court must defer to a congressional finding that providing Miranda warnings to a terrorist would impede law enforcement from obtaining vital intelligence that might prevent an imminent attack, even though it need not defer to Congress’s ultimate determination on the admissibility of the terrorist’s unwarned statements.  Recall that in Quarles the Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for [Miranda’s] prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”  If this balancing test is the controlling constitutional test, a congressional finding on the public safety issue would seem clearly relevant to, if not dispositive of, admissibility. 

            Furthermore, while Dickerson affirms Miranda’s continuing validity as a “constitutional holding,” it is less than clear what that holding is.  As conceived by the Dickerson Court , Miranda is essentially a constitutional policy that “reliance on the traditional totality-of-the-circumstances test raise[s] a[n] [unacceptably great] risk of overlooking an involuntary custodial confession.” 

            We know that stare decisis prohibits Congress from simply reinstating the  totality-of-the-circumstances test, but this doesn’t necessarily preclude Congress from establishing exceptions for certain categories of cases.  Quarles and other post-Miranda cases demonstrate that the courts can still make determinations of voluntariness even when no warnings are given.  It is difficult to see a principled reason why Congress could not provide for admission of voluntary statements in limited circumstances. 

            In his Citizens United concurrence, Chief Justice Roberts explained that stare decisis “counsels deference to past mistakes, but provides no justification for making new ones.”  Would applying Miranda’s rules, developed for use in ordinary law enforcement in the 1960s, to intelligence-focused interrogations of suspected terrorists qualify as a “new mistake”?  Hard to say, but I wouldn’t rule it out. 

            Finally, one should not forget that Miranda itself left room for legislative action that provides alternative safeguards to ensure voluntariness.  Such safeguards would provide an additional basis on which the Court might defer to a public safety statute.  Although it might be politically controversial, for example, Congress could require that unwarned interrogations of terrorists be videotaped, in order to facilitate the court’s determination of voluntariness. 

            So I think that critics are premature when they dismiss the viability of a public safety exception statute for terrorist interrogations.

The Dickerson Decision

           The majority opinion in Dickerson v. United States, 530 U.S. 428 (2000), was written by Chief Justice Rehnquist (the author of the Quarles decision).  The opinion states its hold succinctly at the outset: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.” 

            Note that the opinion does not say that Miranda was a correct constitutional decision.  On the contrary, the Court expressly notes that its holding is independent of “[w]hether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance.”  This is not surprising—we have already seen that Justice Rehnquist’s opinion in Quarles expressed considerable skepticism about Miranda. 

            The Court’s analysis begins with the proposition that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.”  This is a strange formulation.   The justification for judicial review, as set forth in Marbury, is that the Court has the authority and duty to determine whether a federal statute (presented in a case or controversy) complies with the Constitution.  In making this determination the Court will consider and generally adhere to the holdings and reasoning of its precedents, but this is different from claiming that Congress is forbidden from “legislatively supersed[ing]” a precedent that purports to interpret or apply the Constitution. 

            The distinction may be seen by reference to Hamilton’s observation, in Federalist No. 78, that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.”  Thus when the Court applies its precedents, it is (or should be) applying the judgment or reasoning of those cases to the case before it.  If the reasoning of precedent controls the case at hand, then it may result in striking down a federal statute.  But the assertion that Congress may not “legislatively supersede” a precedent suggests that Congress is required not merely to comply with the Constitution (the interpretation of which may be informed by judicial precedent), but is also required to comply with Supreme Court precedent as a declaration of judicial policy, ie, an act of will not merely judgment. 

            Of course, as is often observed (for example by Justice Sotamayor), the exercise of judgment may in effect make policy and may be influenced by the policy preferences of the judges.  This, however, is a byproduct of the unfortunate fact that laws cannot interpret, apply and enforce themselves, and therefore require human beings to do it for them.  It is a bug, not a feature, of the judicial system. 

            The distinction between precedent as judgment and precedent as policy is often difficult to detect, but the unusual nature of the Miranda decision makes it apparent.  If the Miranda rule were formulated as a judgment, it would go something like this: “absent warnings or some other special safeguards, admission of a custodial confession violates the Fifth Amendment.”  As the Dickerson dissent (Justice Scalia, joined by Justice Thomas) notes, this was the fairest reading of Miranda at the time that the initial decision was rendered.  Subsequent decisions, however, preclude this reading of Miranda.  Those decisions allow unwarned, but voluntary, custodial confessions to be admitted in the prosecution’s case in chief under some circumstances (Quarles), or allow them to be used for impeachment (Oregon v. Hass, 420 U.S. 714 (1975), or allow the fruits of such confessions to be admitted (Michigan v. Tucker, 417 U.S. 433 (1974)).  Both the results and reasoning of these cases establish that unwarned, but voluntary, confessions do not violate the Fifth Amendment.

  

            The Dickerson majority, while conceding that there “is language in some of our opinions that supports the view” of Miranda as a non-constitutional decision, concluded that Miranda’s constitutional nature was demonstrated by the fact that the Court had consistently applied its rule to the states.  Since the Court lacks supervisory authority over the states, the majority reasoned, this necessarily means that the Miranda rule must be one of constitutional dimension. 

            Note that the Court isn’t saying that section 3501 is invalid because it is inconsistent with the Constitution, or inconsistent with the Constitution as interpreted by Miranda, or even inconsistent with Miranda’s reasoning.  Instead, section 3501 is invalid because holding it valid would imply that Miranda is invalid and the Court is unwilling to consider, under stare decisis, whether Miranda is in fact valid.  The Court has traveled a ways from the traditional notion that congressional enactments are entitled to a presumption of constitutionality. 

            At the end of the day, the most plausible interpretation of Miranda seems to be that it was based on the assertion of a judicial authority to create prophylactic rules, not themselves required by the Constitution, in order to protect constitutional rights.  The Dickerson dissent points out that this interpretation was urged by both Dickerson and the government, and suggests that the fact that the majority does not mention it means that they, like the dissenters, reject the existence of any such authority.  However, the majority appears to be applying the doctrine of stare decisis to Miranda’s result, not its reasoning.  Thus, it may be that Miranda now stands only for the proposition that the Court has created a specific set of prophylactic rules to govern custodial confessions in most circumstances, not that the Court actually has the constitutional power to do so.  If this in fact is the proper interpretation of Dickerson, it is understandable that the Court may not have wanted to say so explicitly. 

             The Dickerson Court echoes Quarles in describing Miranda as essentially an exercise in balancing the costs and benefits of requiring warnings prior to a custodial interrogation.  On the cost side, the Court acknowledges the “disadvantage of the Miranda rule . . . that statements which may be by no means involuntary . .           . may nonetheless be excluded and a guilty defendant go free as a result.”  On the benefit side, it notes the Miranda Court found that the traditional totality of the circumstances test (ie, the approach endorsed by section 3501) created an “unacceptably great” risk of “overlooking an involuntary custodial confession.”  Moreover, the Dickerson Courtconcluded that the Miranda rule had shown itself to be easier for both law enforcement and the courts to apply than section 3501.

            This type of cost-benefit analysis would seem to be a quintessential legislative task, but the Dickerson majority evidently felt that it was under no obligation to consider, much less defer to, the factual findings and judgments made by Congress in enacting section 3501.  In my next (and final) post on this subject, I will consider the implications of Dickerson’s approach for a potential statute expanding and defining the public safety exception for terrorist interrogations.

Congress, Miranda and the “Public Safety” Exception

Last week Attorney General Holder suggested that the administration may seek legislative changes to facilitate the questioning of terrorism suspects within the criminal justice system.  One potential change would be to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.”

Some experts, such as Professor Orin Kerr, say that the Supreme Court is likely to give little deference to such a statute.  Kerr suggests that the constitutional nature of the Miranda rule means that Congress has no role in determining its scope or application.  (Kerr, btw, will be serving as a special advisor to Senator John Cornyn for the Kagan nomination).  Senator Pat Leahy expressed a similar view yesterday.

I think Kerr and Leahy are wrong.  To understand why, one needs to be familiar with the dialogue between Congress and the courts with regard to Miranda specifically and with regard to the broader question of each branch’s role in interpreting the Constitution.

In Miranda, the Court found that custodial interrogation is inherently coercive, noting that “the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weakness of individuals.”  It acknowledged that the admissions in the cases before it were not necessarily involuntary in the sense previously thought to justify exclusion, but nonetheless found that the “current practice of incommunicado interrogation” conflicts with “one of our Nation’s most cherished principles — that the individual may not be compelled to incriminate himself.”  It concluded that “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”

To guide law enforcement as to what would be “adequate protective devices,” the Court laid out the now-famous Miranda warnings.  It was careful to note that it was not creating a “constitutional straitjacket” to prevent Congress and the States from adopting alternative procedures to protect a suspect’s Fifth Amendment rights.  However, in the absence of “other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it,” the Miranda Court held that the warnings would be required before a suspect’s custodial statement could be admitted into evidence.

Congress reacted to the Miranda decision by holding hearings that questioned the empirical basis of the Court’s assessment of custodial interrogations. The Senate Judiciary Committee heard from witnesses such as then-District Attorney (now U.S. Senator) Arlen Specter, who “pointed out that the so-called third degree methods deplored by the Supreme Court and cited as a basis for their opinion in Miranda is not a correct portrayal of what actually goes on in police stations across the country.”  Other critics of the Miranda decision included Quinn Tamm, the executive director of the International Association of Chiefs of Police, who stated that “while these coercive practices might have been approved 30 years ago, they have no place in modern police techniques.”   Thus, coercive practices in police interrogations constituted the “exception rather than the rule,” and the Senate Judiciary Committee concluded that custodial interrogations were not in fact inherently coercive.

In 1968, two years after Miranda was decided, Congress enacted 18 U.S.C. § 3501, which purported to establish a multi-standard test for determining the admissibility of confessions.  The law in essence restored the pre-Miranda law by requiring the court to make a determination whether the confession was voluntary based on the totality of the circumstances.  It directed the judge to consider certain specified factors, including whether the defendant had been warned of his rights, but provided that no one factor was to be conclusive on the issue of admissibility.

The legislative history of section 3501 clearly indicates that it was intended to “overrule” Miranda, and prosecutors did not attempt to rely on it in court in the years following enactment.  They no doubt thought it unlikely that the courts would follow a statute purporting to overrule a constitutional holding of the Supreme Court.

As time went on, however, subsequent Supreme Court decisions began to call into question the constitutional basis of Miranda. Although it was always clear that the Constitution itself did not require any specific warnings, these later decisions suggested that the Miranda warnings were a mere “prophylactic rule” and that the Constitution did not require the exclusion of voluntary confessions, even if there were no warnings or alternative procedures to protect the suspect’s rights.

For present purposes, the most significant of these decisions was New York v. Quarles, 467 U.S. 651 (1984), a case involving a rape suspect who was apprehended by the police.  The victim flagged down two police officers immediately after the rape, described the suspect, and told them he had a gun.  The officers located the suspect, and, after a brief chase, arrested and handcuffed him.  After discovering that he had an empty shoulder holster, one of the officers asked him “where’s the gun?”  The suspect then indicated where he had ditched the revolver, which the officer recovered.

Because the suspect was clearly in custody, and had made the incriminating statement regarding the gun before being warned of his rights, the state courts suppressed the statement (and the gun itself) under Miranda.  The Quarles Court, in an opinion written by then-Justice Rehnquist, reversed.  It held that there was a “public safety” exception to Miranda that applied in a “kaleidoscopic situation such as the one confronting the officers.”  In short, it did not believe that the warnings were required in “a situation in which police officers ask questions reasonably prompted by a concern for the public safety.”

Justice Rehnquist’s opinion fairly drips with skepticism regarding the validity of the initial Miranda decision.  Noting that the Miranda dissenters warned that the ruling would have the effect of decreasing the number of suspects who confessed, he rather acerbically notes that the Miranda majority “apparently felt that whatever the cost to society in terms of fewer convictions of guilty suspects, that cost would simply have to be borne in the interest of enlarged protection for the Fifth Amendment privilege”  (emphasis added).  Where public safety was at stake, however, the potential cost of deterring the suspect from responding was “something more than merely the failure to obtain evidence.” Accordingly, the Quarles Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”

It is impossible to square the holding in Quarles with the notion that Miranda is constitutionally required.  After all, as the Quarles dissenters pointed out, a custodial interrogation does not become any less coercive by virtue of the fact that the public safety is at stake.  If an unwarned interrogation violated the Fifth Amendment, the confession in Quarles would have had to be suppressed, regardless of the public interest in getting the information.  The only logical conclusion from the holding in Quarles was that the admission of unwarned, but voluntary, custodial confessions did not violate the Constitution.

The reasoning of Quarles also suggests that the Miranda rule was essentially derived from balancing the public interest in obtaining criminal convictions against the danger posed by potentially coercive interrogations.  Such a task would seem to be a quintessential legislative endeavor, as the Senate Judiciary Committee had in fact suggested in considering section 3501.  It was only a matter of time before the courts would be asked to consider the validity of the federal statute in light of the new judicial perspective on Miranda.

I will turn to that story in my next post.

Congress’s Responsibilty for the Constitutionality of Healthcare Legislation

           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 Nebraska with regard to Medicare reimbursement.  And even when such challenges can be brought, it is likely to be many years before they are finally resolved. 

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.