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.



At oral argument last week in the health care case Justice Kennedy made the following remarkable proposals about the presumption of constitutionality:

Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

The answer to both questions is NO. Justice Kennedy's proposed view of the role of the Judicial Branch violates the Separation of Powers.

The Legislative Branch enacts legislation. The Judicial Branch ascertains the meaning of laws and determines whether they are constitutional. In interpreting a statute the courts must defer to the intent of the legislature. The touchstone for statutory interpretation is "the intent of the legislature." Similarly, in assessing the constitutionality of a statute the courts must presume that it is constitutional.

There is only one exception to this rule. If Congress or a state enacts a law that infringes upon an individual's constitutional rights, then the courts will "strictly scrutinize" the law. In such a case the government bears the burden of proving that the law is constitutional - it must prove that the law is necessary to accomplish a compelling governmental interest. If the law does not affect anyone's constitutional rights then the "rational basis test" applies. The person challenging the law has the burden of proving that the law does not have any tendency to accomplish a legitimate governmental purpose.

It used to be that the Supreme Court recognized "economic liberty" as a constitutional right, and frequently struck down laws regulating employers and protecting workers under the theory of "economic substantive due process." That is no longer the case.

Instead, today economic legislation is presumed constitutional. This rule applies whether or not the law is "novel" or "shocking" to the members of the Court. The Supreme Court has recognized this principle in dozens, if not hundreds of cases. Here are but a few quotations from cases demonstrating this basic precept of constitutional law:

[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. United States v. Carolene Products, 304 U.S. 144, 152 (1938) (Stone, J.) (upholding federal law against challenge under Due Process Clause).
[T]o be constitutional … It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) (Douglas, J.) (unanimous decision) (upholding state law against challenge under Equal Protection Clause).
We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (Black, J.) (unanimous decision) (upholding state law against challenge under Due Process Clause).
[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. Katzenbach v. McClung, 379 U.S. 274 303-304 (1964) (Clark, J.) (unanimous decision with concurring opinions by Black, Douglas, and Goldberg, JJ.) (upholding federal law under Commerce Clause).
It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976) (Marshall, J.) (upholding federal law against challenge under Due Process Clause).
Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U.S. 144, 153-154 (1938), they cannot prevail so long as “it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.” Id., at 154. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (Brennan, J.) (footnote omitted) (upholding state law against challenge under Equal Protection Clause).
[Referring to] the strong deference accorded legislation in the field of national economic policy…. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 476 U.S. 717, 729 (1984) (Brennan, J.) (unanimous decision upholding federal law against challenge under Due Process Clause).
In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. South Dakota v. Dole, 483 U.S. 203 (1987) (Rehnquist, J.) (upholding federal law under General Welfare Clause).
[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. United States v. Comstock, __ U.S. __, 130 S.Ct. 1949, 1956 (2010) (Breyer, J.) (upholding federal law under Necessary and Proper Clause).

Tthe principle that the courts must defer to Congress on questions of economic policy pervades the Constitution. This principle applies in every field of Constitutional Law - Commerce Clause, Spending Clause, Necessary and Proper Clause, Fifth Amendment Due Process, and Fourteenth Amendment Due Process. This principle is so basic to our system of government that it must be considered a fundamental aspect of the doctrine of Separation of Powers. There is no exception to this principle for "novel" statutes. All statutes are novel. Nor does it matter how significant a departure that the law makes. It matters not whether the law works a minor or a major change in our society. The people, acting through their representatives in Congress, have the right to determine national economic policy. That is the meaning of the foregoing cases.

In tomorrow's post I will discuss why the courts must defer to Congress in the realm of economic policy.

Wilson Huhn teaches Constitutional Law at The University of Akron.