Deference to Congress' Findings

By Kristopher A. Nelson in

Twitter Facebook

To defer to Congress without sufficient review would ignore the Supreme Court’s constitutional role: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). Allowing Congress to force the Court through one-sided “findings of fact” to declare a statute constitutional would permit Congress to circumvent the judiciary’s constitutional power. To do so would significantly interfere with the power granted to the Court under the Constitution and the Bill of Rights to protect the rights of the minority from the desires of the majority. See, e.g., U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court”); U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land”); Saikrishna Prakash, Are the Judicial Safeguards of Federalism the Ultimate Form of Conservative Judicial Activism?, 73 U. Colo. L. Rev. 1363, 1367 (2002) (noting that “the Framers understandably read various constitutional provisions . . . as authorizing and permitting judicial review to constrain congressional overreaching”); Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1136 (1991) (noting that the Bill of Rights “protect[s] vulnerable minorities from dominant social majorities”); Susan M. Raeker-Jordan, Parsing Personal Predilictions, 58 Me. L. Rev. 99, 127 (2006) (emphasizing that “the Constitution’s Bill of Rights . . . is often seen as safeguarding the rights of the individual against the tyranny of the majority”).

Simply because Congress finds that a particular activity meets a test for constitutionality does not necessarily make that conclusion correct. United States v. Lopez, 514 U.S. 549, 557, n. 2 (1995) (holding that gun possession in local school zones did not substantially affect interstate commerce and concluding that Congress lacked authority to enact a law prohibiting such activity). A decision about constitutionality “is ultimately a judicial rather than a legislative question.” Id. In short, despite congressional findings of fact, the Supreme Court, not Congress, decides constitutional matters. United States v. Morrison, 529 U.S. 598, 614 (2000) (exercising judicial authority to strike down congressional legislation in the form of the Violence Against Women Act because it was not related to commerce clause authority, despite congressional findings that it was).