Why the Courts Must Presume that Economic Legislation is Constitutional

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess the political branches in the determination of national economic policy.

I promised that today I would explain why the courts lack that power. There are two reasons. First, the courts are not institutionally equipped to undertake the complex analysis necessary to the establishment of economic policy. Second, the courts are not democratically authorized to balance and compromise the economic interests of different segments of our society.

Separation of Powers and the Presumption of Constitutionality: A Response to Justice Kennedy

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation of Powers.