“Partly Constitutional” Doesn’t Cut It
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The oddest defense of S.1/H.R. 1 I’ve seen lately is that the courts would ultimately uphold
parts of it as constitutional. As several backers told the New York Times in a roundup article last week on expected legal challenges, “not all of the anticipated challenges to [the omnibus election bill] would succeed.” Many parts would be left standing.
I’ve got a new piece at National Review pointing out that a standard of “partly constitutional, partly not” shouldn’t be seen as good enough. “Members of Congress take an oath that requires them to ‘support and defend’ the Constitution.” That means satisfying themselves that there’s a sound constitutional basis for the entirety of a bill they approve, not just some of its parts. That doesn’t always mean they need to back off every provision they foresee will face an uphill fight in court. After thinking things through, they might decide on reflection that current precedent is wrong and deserves to be challenged. What they cannot do, at least not without tension to their oath, is to just breeze by questions of constitutionality, as someone else’s job to worry about.