Georgetown law professor documents problem of ‘double deference’

Writing for the Washington Post‘s “Volokh Conspiracy” blog, Georgetown law professor Randy Barnett documents a critical constitutional problem involving the relationship between Congress and the federal courts.

Given that the ACA contained numerous revenue raising provisions, how could it originate in the Senate? Senate Democrats utilized what is called a “shell bill” procedure taking an ostensible revenue bill passed in the House, “amending” it by deleting its title and every single word, retaining only the House bill number, and then inserting the 2700 pages of the Patient Protection and Affordable Care Act. Is this constitutional?

The Supreme Court has never passed upon the constitutionality of using a shell bill to satisfy the Origination Clause. Although it has adopted what is called the Enrolled Bill rule that assumes that the procedures of the House and Senate were followed — for example, whatever language is formally “enrolled” by the House and Senate is the language of the law despite previous textual disparities — here the issue is not whether the “shell bill” procedure was followed; it is whether the “shell bill” procedure itself conforms to the requirement Art I, Sec 7. Does it?

Like most, Jonathan [Adler] 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.

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.

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