Constitutional Principles and Incentives
Let me turn to the third main problem with the hypothetical system of RJR, namely, that it does not guarantee any form of compliance with constitutional principles, whatever we take them to be.
It is, after all, random. In contrast, one can say, in favor of CJR, that it operates as an inducement to compliance. Even if, say, Congress cannot be sure that a proposed piece of legislation would be deemed unconstitutional by the Supreme Court, Congress is at least aware of the possibility that it might be. In other words, CJR operates like a threat looming large over the legislature and other governmental agencies, constantly reminding them, as it were, that whatever they do might come under review, and, if found unconstitutional, would be struck down. One can make an argument, therefore, that, even if the threat is often underspecified, it is an incentive that, generally speaking, in the long run, induces compliance and enhances good constitutional behavior, as it were. It makes other branches of government at least try to remain within their legitimate boundaries.One obvious question here is: compliance with what? We have already noted that, if the constitutional text (broadly construed) is clear and determinate, cases do
not tend to make it to the Supreme Court. And we saw that by employing something like RJR*, we can handle the issue of compliance in cases of clear and determinate constitutional prescriptions, where no reasonable argument can be made to understand the constitutional requirements one way rather than another. Now, of course, many constitutional scholars have argued that courts ought to apply or be able to figure out some underlying constitutional principles, even if they are not explicitly prescribed in the constitutional text.[15] I will not try to put pressure on this assumption here (I have done that elsewhere[16]).
Even if you think there are some determinable answers to what counts as legitimate constitutional practices, CJR is not going to provide the incentive to comply with such principles. I other words, I do not believe that we have an answer to the question of “compliance with what?” but this is not the issue I am going to press here.The main problem with the argument under consideration consists in its underlying assumption that legislators necessarily want to avoid constitutional challenges to their legislative acts. The assumption is that, if legislators know in advance that a piece of legislation they seek to enact is likely to be struck down as unconstitutional, they would refrain from trying to enact it. But that is just not necessarily, or even typically, the case; scholars have long pointed out that legislators often go ahead with an act they expect to be struck down as unconstitutional because it gives them the populist political benefit vis-a-vis their constituents without actually bearing the responsibility for the unwanted consequences of the proposed legislation.[17] Here is a schematic scenario: Suppose that there is strong popular support for a legal measure, say X, to be enacted. Suppose that X is a questionable measure from a constitutional perspective, one that might be struck down by the Supreme Court. If the legislators believe that voting for X is going to be popular with their constituents, even if they share the qualms about the desirability of X and/or its constitutionality, they would act rationally if they go ahead and enact X. If X is struck down by the Supreme Court, the legislators gain the popularity benefit from their constituency supporting X, while shifting responsibility for the measure’s failure to the Court. If the Court upholds X, the legislators get both the popularity benefit and the legalmoral support of the Court, a kind of vindication that X is not unconstitutional after all. Either way, voting for X is a win-win situation from the legislators’ perspective.
The general lesson from this is simple: Unconstitutionality does not necessarily operate as a sanction; it does not necessarily deter legislatures from enacting questionable measures. It is often to the contrary: Without CJR, legislatures would have to bear full responsibility for the ramifications of the legal measures they enact. With the constitutional guardianship of the Court, legislatures can behave irresponsibly by shifting the responsibility to the Court. Therefore, CJR does not typically induce constitutionally responsible behavior; often it does the exact opposite.
Of course, supporters of CJR may claim that such distorted incentives are the exception, not the rule. Most of the time, they would say, CJR provides the right incentives; it only fails to do so under some specific set of circumstances that are rather exceptional. But I seriously doubt that this optimistic view is also realistic. Remember that we could easily shift the argument from RJR to RJR*: If the unconstitutionality of a proposed piece of legislation is entirely on the surface, in no plausible legal doubt, legislatures would not have the political incentive to go ahead with the legislation. It is difficult to gain political traction with measures that are obviously and transparently unconstitutional. Populist pressure tends to build up around measures that seem constitutional to some, though not to others. Legislators tend to push for enactments that they can present as passing constitutional muster with some, even if strained, plausibility. Having the guardianship of the Supreme Court in the background in such cases only gives politicians the incentive to forge ahead, not to back down, for the reasons mentioned above.
In other words, perhaps unconstitutionality provides incentives to refrain from legislation in the clearest and most transparent cases. But RJR* would not apply there anyway. To make the argument for the preference of CJR to RJR*, proponents would have to show that, even when the constitutionality of a proposed legal measure is in some plausible doubt, the looming threat of the Court rendering the law unconstitutional - even if this threat is vague and uncertain - is likely to keep the legislature in check.
I do not quite see what presumed incentive structure completes the argument here. A threat is a threat only if its materialization constitutes a setback for the relevant agents. It is difficult to see what setback to politicians’ interests is in play here. If the constitutionality of the measure they seek to enact is in some doubt, why would they refrain from forging ahead?There might be one type of case in which even a vague and uncertain threat of unconstitutionality provides some incentive to back down, namely, when the relevant measure forms part of a policy change the executive branches of the government seek to implement, and its obstruction by the Court would constitute a serious impediment to the implementation of the policy. In such cases, the looming threat of unconstitutionality should provide the government with an incentive to avoid the threat and modify its proposed policy accordingly. One should think that this would be the case particularly with policy changes that involve heavy costs. But, even then, it turns out to be difficult to generalize. The executive branches of government are not free of populist temptations. They may also have an incentive to take the risk of obstruction or even failure of the policy they wish to implement if they can blame it on the courts, particularly when the policy in question is very popular with the administration’s constituency.[18]
To sum up the argument from incentives, the main problem with the argument in favor of CJR is that unconstitutionality does not necessarily operate like the threat of a sanction that could deter political actors from succumbing to populist temptations. On the contrary, the more populist the temptation for a legislative act, the less likely that CJR’s presumed deterrent effect would have any real impact. In terms of incentive structures, there is no advantage to CJR over RJR*.
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