"The Court Will Clean it Up": Confronting the Specter of Political Branch Dereliciton of Duty


The general normative assertion that “members of Congress and the President should assess the constitutionality of legislation that they pass” is relatively undisputed and of little practical import. The dispute (and practical importance) becomes greater over questions such as “how much constitutional scrutiny ought they to apply” and “how much scrutiny is really taking place.”

Constitutional text and early practice suggest that the answer to the first question is that Congress and the President ought to apply a great deal of constitutional scrutiny when deciding whether or not to pass legislation. And numerous recent episodes suggest that the answer to the second question is that members of Congress and the President are in fact applying much less scrutiny than they ought. This has resulted in an aggrandizement of the federal government with respect to the states and the people and a consequent decrease in liberty. Because Congress and the President have tools available to them that facilitate their continued dereliction of duty, it is likely up to the states and the people to enforce a system of coordinate restraint.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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