Justice Scalia seems to doubt that benefit of the doubt. If Congress includes various provisions to allow courts to quickly assess whether a law is constitutional, it does raise doubts about whether Congress actually thought it was constitutional.
LAMB: All right. Let me read this to you, ”The modern congress sails close to the wind all the time. Federal statutes today often all but acknowledge their questionable constitutionality with provisions for accelerated judicial review for standing on the part of the members of congress, and even for fallback disposition, should the primary disposition be held unconstitutional.”
LAMB: I want to go back to that original thing, statement, ”The modern congress sails close to the wind all the time.”
SCALIA: Yes. That followed upon our statement that, traditionally, Congress is – you assume the constitutionality of any statute that Congress enacts because it is assumed that Congress would not – indeed if there is even constitutional doubt, you give the Congress the benefit of the doubt.
In recent years however, it’s more questionable whether Congress really is even thinking about the constitutionality and that passage recites the fact that this evident from the content of their statutes. I mean, who would have ever thought, in the 19th century for example, that congress would pass a statute that says, ”In the event the stuff we’re just said is unconstitutional, we have this other provision instead,” which is what congress has done.
I mean, that makes you wonder, are they really sure this stuff is constitutional? Have they really thought about it? And I think that comment was also made in response to the charge of ”judicial activism” which is a word that doesn’t mean anything really.
It just means that the person who uses it doesn’t agree with the decision. I mean, what is judicial activism? It is certainly not doing actively what judges ought to do. Is that judicial activism? I think not. And if a statute ought to be held unconstitutional it’s not judicial activism to call it unconstitutional.
It is interesting that the Affordable Care Act, which most knew from its outset was on a collision course with the Supreme Court, did not contain any expedited provisions (like the McCain Feingold BCRA had). David Bernstein blogged that an original version of HillaryCare included just such a provision. Alas, it seems the authors of the ACA did not take such concerns seriously.