Dissing Congress or Viva Marbury?

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3 Responses

  1. Norman Williams says:

    Good post, Ron. One other model of judicial review is available, which you omit: process federalism. One might believe that the Court should defer to Congress and uphold federal statutory enactments whose constitutionality is questioned as violating federalism-based restraints (i.e., states rights) as opposed to individual rights (i.e., Alvarez, Boumediene, etc.). For most of the twentieth century (New Deal to 1995), that was the best account of the Supreme Court’s jurisprudence, and that theory would more than suffice to justify the VRA in 2006 or 2012.

  2. Bruce Boyden says:

    Isn’t there a basis for distinguishing between the situations you mention — Boumediene, Hamdi, Alvarez, and Eichman — and Shelby County? The Habeas Corpus Clause, 5th Amendment due process clause, and First Amendment are all limitations on Congress’s power. Congressional legislation coming close to the boundaries of those provisions, one could argue, should get little or no deference. But Section 5 of the Fourteenth Amendment explicitly gives Congress the power to enforce the Equal Protection Clause. Therefore, Congress should get deference in its exercise of that power, the same way it gets wide latitude to determine what “commerce” is.

  3. Ron Krotoszynski says:

    Doesn’t the enforcement/substance dichotomy break down when there’s a conflict in rights related to the “enforcement” measure? E.g., were Congress to pass a “Personhood Act” that sought to enforce section 1 of the Fourteenth Amendment by declaring that one is legally a person from the moment of conception (thereby displacing any state laws to the contrary)? Would deference to enforce the Equal Protection Clause cover this hypothetical? Or a federal press shield law “enforcing” the substantive scope of the First Amendment’s Press Clause that also has the effect of burdening the rights of criminal defendants to obtain exculpatory testimony from journalists?

    The “political safeguards of federalism” approach works only when the “enforcement” legislation merely displaces an existing state regulatory regime, rather than resets (by moving) a boundary line between two conflicting substantive rights. Given that section 5/section 2 legislation can and does do both things, I’m not sure it’s a viable basis for distinction.

    Norman and Bruce are quite right to posit federalism versus substantive rights as a potential line of defense. Garcia v. SAMTA, 469 U.S. 528 (1986); but cf. National League of Cities v. Usery, 426 U.S. 833 (1976). With that said, I’m not convinced that, at the end of the day, the line holds because federalism issues can and do implicate substantive rights when Congress resets a boundary line.