David Bernstein queries why the Attorney General believes Congress should be given deference when they do not deliberate, read, or take seriously constitutional challenges to laws, such as ACA:

I’m pretty surprised that Holder would quote language suggesting that a strong presumption of constitutionality obtain to acts of Congress because of the “deliberate” constitutional “judgment” of Congress when at issue is a law for which there is substantial evidence that there was no such deliberate judgment (and that’s besides the fact that virtually no one knew everything that was in the bill before they voted on it). When I recently recounted various on-point quotes, I concluded, “something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.” Indeed.

Putting aside what one thinks of the ACA, why exactly should the courts strongly defer to implicit constitutional conclusions by Congress when, in fact, there was not only no deliberation on the issues, but when leading supporters of the legislation explicitly denied they thought the Constitution mattered? . . .

When the Supremes largely got out of the business of reviewing Congress’s economic regulations, they justified their action on the grounds that Congress is more competent to make the relevant constitutional determinations (e.g., what is “necessary” for the regulation of interstate commerce) than they are. Even if that’s true, Congress’s competence only matters if Congress in fact tries to make such determinations in a serious way. It doesn’t. So I don’t see the justification for a policy of “strong deference” to Congress on constitutional matters that is not, for example, given to state legislatures.