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Pass the BuckWhen Congress passes unconstitutional laws.

By Dahlia Lithwick and Richard Schragger
Posted Saturday, Oct. 7, 2006, at 7:51 AM ET

The language of addiction has become the catchall excuse for bad personal behavior of every sort, but it's worth invoking in one more context: the constitutional one. Please do forgive the United States Congress its atrocious behavior last week. It's not a bad institution, per se. It's merely addicted to judicial review.

Last week, we watched as several senators voted for a bill redefining the treatment, detention, and trials of enemy combatants, even as they expressed doubts as to its constitutionality. The bill setting up military tribunals for enemy combatants, among other constitutional infirmities, contains a provision stripping courts of their power to review the constitutionality of the detentions. This provision, which suspends the writ of habeas corpus for current and future detainees, was contested by a number of senators, but the amendment that sought to excise it from the final bill failed by a vote of 51-49.

Before that amendment was rejected, Sen. Arlen Specter, R-Pa., chairman of the Senate judiciary committee, announced, "I'm not going to support a bill that's blatantly unconstitutional ... that suspends a right that goes back to [the Magna Carta in] 1215." He added, "I'd be willing, in the interest of party loyalty, to turn the clock back 500 years, but 800 years goes too far."

Specter's justification for then voting for a bill he deemed unconstitutional? "Congress could have done it right and didn't, but the next line of defense is the court, and I think the court will clean it up."

There is some irony in this congressional willingness to see the courts as some kind of constitutional chambermaid—as an entity that exists to clean up after Congress smashes up the room. It is especially ironic when it's articulated by members of Congress who like to invoke judicial restraint as a constitutional value. But it is beyond ironic, and approaching parody, when Congress asks the court to clean up a bill it knows to be unconstitutional, when the bill itself includes a court-stripping provision.

Criticizing the court for overturning the laws passed by Congress—as Specter did repeatedly during the John Roberts and Samuel Alito hearings—is fair, so long as one is willing to defend one's own interpretation of the Constitution when one gets a chance to assert it. But simultaneously crying "judicial activism" as you rely on the courts for political cover when you're too timid to defy the electorate—or your president—is hypocritical.

Why should the Supreme Court defer to a Congress that adopts laws it suspects of being unconstitutional? And what should we think of those elected officials who would take so cavalier an attitude toward their oath to uphold the Constitution?

Members of Congress take the same oath as do Supreme Court justices, after all. And Congress regularly asserts its institutional prerogative to interpret the Constitution—to act on an equal footing with the Supreme Court in making decisions about the constitutionality of a law. Moreover, the justices are supposed to assume that Congress never intentionally adopts an unconstitutional law, and you need attend only a few moments of oral argument to see how seriously they take that charge. So how is it possible that an oath-bound member of Congress can support a law that he or she believes violates the Constitution?

Congress gives in to the temptation of passing laws that are of questionable constitutionality because it's easy and convenient. Political expediency seems to trump constitutional principle. The elected branches need never defy the popular will if the courts are available to do so instead. And those members of Congress who insist that the courts should stay out of Congress' business should recognize Congress for the enabler it's become. It's a two-way street: The courts work with what Congress sends them, and sometimes Congress purposefully sends them unconstitutional legislation because it is politically expedient to do so.

That's why lawmakers who think that legislation banning flag-burning violates the First Amendment regularly trot it out anyhow. It is an easy way to mollify voters, while letting some other branch grapple with what the Constitution actually requires. As an added bonus, lawmakers then can blame the courts for usurping the will of the electorate, turning an ordinary political pander into an Olympics-worthy double-pander.

So instead of pointing fingers at the court, let's call the whole relationship what it is: dysfunctional. For all their railing against the court, Congress sometimes relies upon it to achieve substantive aims. The court, sheltered from political fallout, can sometimes afford to be brave when Congress cannot. But this suggests that cries of "judicial activism" from Congress should be suspect. As is the case in any dysfunctional relationship, Congress has a vested interest in being upheld when it wants to be, and struck down when it needs to be bailed out.

The ongoing popular debates about the terms and parameters of "judicial activism" or "restraint" really have to be understood in institutional terms. Congress behaves strategically. When it is convenient, members of Congress will praise and advocate judicial restraint, and when it is not, they will rely on "activist" judicial intervention. Sen. Specter's argument during the Roberts and Alito hearings bears this out. Specter was distressed not that the court was too activist in striking down acts of Congress, but that it was too activist in striking down the wrong acts of Congress. Yet this judicial backstop serves Specter's goals when he is unwilling to make the call himself.

Whether one agrees or disagrees with any given view of what the Constitution requires, the strategic use of the court reduces accountability, it corrupts the lawmaking process, and it is deeply cynical. Lawmakers should take their constitutional obligations seriously. And if they do not take their own obligations seriously, then they have no right to criticize the judicial branch when it does.

Should the Supreme Court bail out Congress for the unconstitutional provisions of the new detainee legislation? Once again, it has no choice. But the real question is whether the public should bail them out. We can always choose not to.

A version of this piece appears in the Washington Post Outlook section.

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Dahlia Lithwick is a Slate senior editor. Richard Schragger is a professor at the University of Virginia Law School.
Photograph of the Capitol on the Slate home page courtesy Photodisc.
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