Dissing Congress.

• Date: 01 October 2001
• Author: Colker, Ruth,Brudney, James J.
• Published date: 01 October 2001
• Author: Colker, Ruth

My Court is fond of saying that acts of Congress come to the Court with the presumption of constitutionality. That presumption reflects Congress's status as a coequal branch of government with its own responsibilities to the Constitution. But if Congress is going to take the attitude that it will do anything it can get away with and let the Supreme Court worry about the Constitution ... then perhaps that presumption is unwarranted. (1)

-- Justice Antonin Scalia

The Supreme Court under Chief Justice Rehnquist's recent leadership has invalidated numerous federal laws, arguably departing from settled precedent to do so. The Rehnquist Court (2) has held that Congress exceeded its constitutional authority in five instances during the 2000-01 Term, (3) on four occasions during the 1999-2000 Term (4) and in a total of twenty-nine cases since the 1994-95 Term. (5) Commentators typically explain these decisions in federalism terms, focusing on the Court's use of its power to protect the States from an overreaching Congress. (6)

That explanation is incomplete and, in important respects, unpersuasive. The Rehnquist Court has not been as solicitous of states' rights as one might expect if it were operating primarily from a federalism perspective. Even apart from its highly controversial foray into Florida election law, (7) the Court in recent years has not been shy about invalidating state statutes or governmental actions based on its own conception of what federal power or federal limits require. (8) Moreover, while it is true that many federal laws invalidated since 1995 have involved assertedly unjustified intrusions on state interests, one cannot adequately understand this recent judicial activism toward Congress without employing a separation of powers perspective.

In acting repeatedly to invalidate federal legislation, the Court is using its authority to diminish the proper role of Congress. Structurally, the new activist majority has treated the federal legislative process as akin to agency or lower court decisionmaking; in doing so, the Court has undermined Congress's ability to decide for itself how and whether to create a record in support of pending legislation. Substantively, the Court has limited Congress's powers under the Commerce Clause (9) and Section 5 of the Fourteenth Amendment; (10) it may ultimately constrain Congress's power under the Spending Clause as well. (11) By diminishing Congress's capacity to address what Congress identifies as national problems, the Rehnquist Court is effectively using the Commerce Clause and Section 5 to circumvent the reasoning if not the holding in Garcia v. San Antonio Metropolitan Transit Authority. (12)

Justice Scalia himself has explained the Court's activism in separation of powers terms, maintaining that the Court's invalidation of federal legislation is appropriate because Congress has an "attitude." (13) Many of the invalidated statutes, however, were passed with broad bipartisan support by a legislature that was far from confrontational toward the Court, during periods in which Congress would have had little reason to think it was passing arguably unconstitutional legislation. (14) Moreover, there is evidence that even when Congress passed legislation of doubtful constitutionality, it did so in a framework of respect rather than arrogance. (15) The Court has decided most of these cases on close votes, suggesting that reasonable people could disagree with respect to their constitutionality. (16)

In this Article, we identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress -- the "crystal ball" and the "phantom legislative history" approaches. Under the crystal ball approach, the Court effectively penalizes the enacting Congress for failing to create a detailed legislative record, even though such a record requirement could not reasonably have been anticipated at the moment of legislative deliberation and enactment. (17) Unlike private parties, who routinely must adjust their future conduct based on the Court's new teaching, Congress as a coequal branch is distinctive in its status and its relationship to the Court. This difference helps account for the presumption of constitutionality that traditionally attends congressional enactments. The crystal ball test, however, signals a marked departure from the longstanding precedent of asking whether a legislative record could have supported the current constitutional standard had it been known to the enacting Congress. It also results in the Court micromanaging the work of Congress by specifying how Congress should construct a proper legislative record.

Under the phantom legislative history approach, the Court expresses interest in considering legislative history when assessing constitutionality, but then establishes and applies a legal standard for review that even a detailed legislative record could not possibly satisfy. (18) The Court can be understood as transforming what had been considered proper factual questions within Congress's purview into legal questions for the Court's exclusive determination. The result is the Court taking greater power for itself, displacing Congress's proper factfinding role.

The Court's decision in Board of Trustees v. Garrett (19) underscores the existence of, and tension between, these two methodologies. On the one hand, the Court in Garrett demanded a depth and breadth of documentation to support the exercise of Section 5 authority that Congress could not possibly have foreseen in 1990 when it enacted the Americans with Disabilities Act ("ADA"). At the same time, by demanding a level of legislative factfinding that for practical reasons may be unattainable, the Court signaled that it is reserving the exclusive authority to determine when Congress has acted properly under Section 5. (20)

We do not wish to be understood as supporting every piece of legislation passed by Congress. The Court's targets since 1995 have included substantively "liberal" statutes protecting employees against status discrimination or substandard working conditions, (21) more traditionally "conservative" enactments promoting religious freedom or restricting sexually offensive speech; (22) and neutral laws addressing patent or trademark matters. (23) While the Rehnquist Court has not "dissed" Congress in every instance, its record of invalidations has been remarkably severe. (24) We are disturbed by the Court's emerging vision in which Congress has substantially diminished powers to conduct its internal affairs or to engage in factfinding and lawmaking that the judicial branch will respect.

In Part I, we trace the development of this recent judicial activism in which disrespect for Congress is a fundamental element. In Part II, we describe the Court's decisions in Kimel v. Florida Board of Regents (25) and United States v. Morrison (26) as examples of the crystal ball approach, and we discuss the implications of this methodology for the internal operations of Congress and for the exercise of federal legislative powers. In Part III, we consider Kimel and Morrison as also illustrating the phantom legislative history approach and discuss the significant implications of this methodology for the relationship between the courts and Congress. Finally, in Part IV, we invoke these two methods to help explain the contrast between the Court's asserted interest in legislative record building in the constitutional law setting and its simultaneous disdain for legislative history when construing statutes in nonconstitutional settings. Part IV also addresses how the Court's legislative history approach, especially in the Section 5 area, may actually threaten traditional federalism objectives regarding the role of Congress.

1. THE NEW JUDICIAL ACTIVISM

   Since 1995, a new judicial activism has developed in which disrespecting Congress has become an important theme. Traditionally, respect for democracy, and in particular for the work of Congress as a coequal branch of government, has been a central tenet of judicial review for both liberals and conservatives alike. (27) Legal theorists have struggled from the Republic's inception to explain why judges should even have the power to review the constitutionality of legislative action, given what Professor Alexander Bickel termed the "counter-majoritarian difficulty." (28) After its initial declaration that Congress could not require the Court to act unconstitutionally in Marbury v. Madison, (29) the Supreme Court did not conclude that Congress acted unconstitutionally until the infamous Dred Scott (30) case. Subsequently, as with the substantive due process decisions in the early twentieth century (31) and the Commerce Clause decisions overturning New Deal legislation in the 1930s, (32) the Court's aggressive incursions into federal legislative affairs often appeared improper in hindsight. (33)

   The Court's decision in Marbury is typically the starting point in explaining the existence and validity of judicial review, particularly review of legislation enacted by Congress. The very fact that the Court should have the power to invalidate a federal statute was not something taken for granted before Marbury. Chief Justice Marshall's success in justifying the possible exercise of such a power signaled the beginning of a cottage industry examining that topic. (34) John Thayer, a leading nineteenth century voice on the subject, suggested that the way to resolve the tension between judicial review and democracy was for the courts to strike down legislation only when the legislative branch has made a "very clear" error. (35) As Chief Justice Rehnquist recently summarized the received wisdom in this area, "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." (36)

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