The Problem of “Double Deference”

March 13th, 2014

In a post explaining the origination clause challenge, Randy Barnett highlights the problem of “double deference”–that is, Congress purports to defer to Congress about the constitutionality of a law they are enacting (not my problem!), but at the same time, courts will defer to Congress to make an independent judgment about constitutionality (that is for Congress to decide!):

Like most, Jonathan predicts that the courts will ultimately defer to Congress on this question, and the smart money is always that Congress will defer to Congress. That is the problem of “double deference.” On constitutional questions, the courts defer to Congress’s assessment that its acts are constitutional. Then when you ask members of Congress whether what they are doing is constitutional, they respond by saying, “that is the job of the courts” or, even more commonly, they predict that “the courts will uphold us.” Of course, if the courts defer constitutional judgments to Congress, and Congress defers constitutional judgments to the courts, then no one is considering the Constitution itself. Double deference is a shell game, not to be confused with a shell bill.

This dynamic is particularly true in the context of Obamacare, where Congress absolutely abdicated its role in considering (or even caring about) the constitutionality of the law, or even to follow the normal mods of procedure to enact the law.

Randy also notes the problem of “triple deference” when professors defer to Courts which defer to Congress which defers to Courts. Or something  like that:

When law professors confine their judgment of constitutionality to predicting what the courts will do, we then have a “triple deference” situation, with law professors deferring to courts who defer to Congress who defers to the courts. Better that law professors generally focus on whether a constitutional argument has merit rather than just predicting outcomes. A sole focus on predictions was part of what led law professor astray in assessing the viability of the constitutional challenges to the individual insurance mandate in the ACA. (For other factors, see here.) Moreover, a robust discussion of the merits of a legal issue is of greater service to the courts, who don’t need to be told by law professors what they will or will not do. They will just do it.

Randy builds on this theme in the new afterword to Restoring the Lost Constitution.