“Partly Constitutional” Doesn’t Cut It

Walter Olson

The oddest defense of S.1/H.R. 1 I’ve seen lately is that the courts would ultimately uphold parts of it as constitutional. As several backers told the New York Times in a roundup article last week on expected legal challenges, “not all of the anticipated challenges to [the omnibus election bill] would succeed.” Many parts would be left standing.

I’ve got a new piece at National Review pointing out that a standard of “partly constitutional, partly not” shouldn’t be seen as good enough. “Members of Congress take an oath that requires them to ‘support and defend’ the Constitution.” That means satisfying themselves that there’s a sound constitutional basis for the entirety of a bill they approve, not just some of its parts. That doesn’t always mean they need to back off every provision they foresee will face an uphill fight in court. After thinking things through, they might decide on reflection that current precedent is wrong and deserves to be challenged. What they cannot do, at least not without tension to their oath, is to just breeze by questions of constitutionality, as someone else’s job to worry about.

And this bill gives them a lot to confront. “There are free‐​speech violations, about which ACLU officials have expressed alarm. There are separation‐​of‐​powers problems. There’s plenty of federalism‐​mangling. For those who prefer the more arcane, there are likely Electors Clause and Qualifications Clause violations.” Unfortunately, I write, most members of Congress “don’t try to think through the constitutionality of what they’re doing at all. They treat it instead as a game: Their team gets to take as many shots at the adversary as it can, and the courts as goalies then block what shots they can.”

To make things worse, there are signs that the bill’s drafters are not averse to weakening judicial review. Writing in the Wall Street Journal, Alan Gura spots a sleeper provision that would enfeeble protection of constitutional rights by specifying that First Amendment and other challenges to the bill be heard only by the D.C. federal courts, not those around the country as now. Currently, with federal courts all around the country open to such complaints, it’s usually possible to get quick judicial review of a speech‐​hostile enactment. With cases bottlenecked into the D.C. federal courts only, who knows? Delay in getting an unconstitutional provision struck down, to name one hazard, would loom larger.

More on the problems with H.R. 1/S. 1 here (speech‐​hostile, bossy in areas long left to the sound discretion of the states, in several instances likely unconstitutional), here (places impossible burdens on local election administrators), here (experienced Democrats have doubts about consequences and practicality), here (bill would gut bipartisan structure of Federal Elections Commission, facilitating one‐​party control), and here (extending list of likely‐​unconstitutional provisions).