I honestly find both statements positively baffling.
First of all, it is clearly part of a legislator’s job description to have some familiarity with the constitutionality of the laws they propose, pass and maintain, or else their legislative efforts would be astoundingly wasteful. I would hope a state legislator for the State of Missouri would, for example, be aware of the fact that foreign affairs is not within the scope of state powers and so it would be a silly waste of time to propose Missouri enact legislation infringing upon the federal government’s purview over foreign affairs.
Secondly, the legislature should be able to pass, eliminate or supersede a law for any reason they please. If a legislator believe Law 1234 is not within the spirit or letter of the Constitution then that is no more or less a good reason to repeal it than “I don’t like it” or “my constituents don’t like it” or “Bill 5817 is a better solution” or “it sucks.” How it “it’s unconstitutional” any different, really, from “it sucks?” If the people of Missouri disagree they can vote in new representatives.
I’d say that constitutionality should be part of the debate for every single bill that comes to a vote. That’s absolutely a legislator’s place. I’d say it is a big component of their job. Any law that is ruled unconstitutional (or even has its constitutionality challenged) is, in my opinion, a failure on the part of the legislators who passed it.
Before the law is passed, certainly. Its their job to be good stewards for the public - and spending time and money defending laws that are in clear violation of the constitution is inappropriate. You should be able to shut down a bill that permits prayer in public school with the “that won’t hold up in court, and we don’t want to spend the money fighting it” argument.
However, this law has apparently passed already. In which case, IMHO, its the courts role to determine whether it is constitutional. If he wants to repeal the law for some other reason - like he doesn’t like a tax on earnings, that’s fine.
What are you saying? That some arguments may not be used in debating whether to repeal a law? Wouldn’t that in itself be a violation of the 1st Amendment?
Yes, it is appropriate for the legislature to discuss all aspects of a bill, including it’s constitutionality. If not there, where?
The 2nd hurdle of checks and balance would be the possibility of a governor’s veto. The courts would be the last hurdle.
It’s contradictory for you to say, “I believe it’s wholly appropriate and necessary as a legislator to say that a proposed law unconstitutional on its face and not vote for it for that reason alone. Yet I have a problem with them repealing a law for ostensibly the exact same reason.”
Either the legislators can discuss a bill’s constitutionality or they can’t. I believe they can and should. Why waste tax dollars defending an unconstitutional law that should never have been passed?
I’m just now getting it either. You say legislatures aren’t qualified to judge this question. Why not? They have expertise with statutes, because they write them all. I presume that legislatures in most states have written most, if not all, of the state constitutions.
Can the executive be considered to have enough expertise to judge the constitutionality of laws? After all, they employ a lot of lawyers to figure out what the laws of the state actually mean.
How is it not within the power of a legislature to make such determinations? What, specifically, is the source of this power to review constitutionality?
I think people might see your point of view more clearly if you discussed why you believe your views are correct. Like a few others, I’ve read your assertions and can’t figure out the reasoning behind them.
Appropriateness has nothing to do with the first amendment. I just think that constitutionality should be considered by the legislature BEFORE passing a law. Once its passed, I think its the responsibility of the judicial branch to determine its constitutionality. The legislative branch can certainly repeal a law, but to repeal it because it might not be constitutional seems like they are now doing someone else’s job.
If you are going to in any way restrict the discussion subjects when a legislature is debating a law (to either pass it or repeal it), then the first amendment is certainly relevant. Or are you simply saying that legislators should simply practice self-censorship.
Are you also saying that if a legislature had repealed some Jim Crow law restricting the rights of black citizens, and if it did so before a Supreme Court ruling invalidated the law, it would have been wrong to do so?
No, they’re fixing their mistake. Cleaning the office is the janitor’s job, but I still clean up my own messes at work, and try not to make them in the first place.
The Supreme Court is the janitor, here, if that’s not clear. My only issue with “repealing something that isn’t constitutional” is if they’re trying to prevent a court from setting precedent. For example, if Ohio had repealed their ban on gay marriage in 2014 because it looked like SCOTUS would use Obergfell to rule marriage bans unconstitutional.
That sort of game-playing is bullshit (and I don’t know if it actually happens, or with what frequency), but otherwise, I welcome the legislature fixing their own mistakes without the courts forcing them.
You don’t go far enough. It is IMPOSSIBLE for a legislature not to know, and when necessary, debate, what it has the power to do under its constitution. And its members swear an oath to uphold the constitution just like judges do. The idea that legislator should just throw any crazy, obviously unconstitutional idea up as law and see if it sticks in court is ridiculous. Legislatures are duty-bound to be very careful to assure that they follow the constitution, and not simply let someone else make them do it.
Your argument is a bit like saying that football players should expect to be able to do whatever they want, with no regard to the rules of the game, and just wait for the referees to tell them to stop.
Legislators are required to interpret the constitution to do their jobs. They couldn’t do it otherwise. And they took an oath to do so.
I’m not restricting it, I’m merely saying that in my opinion, it is not appropriate for a legislature to repeal a law merely because they believe its unconstitutional. Why did they think it was constitutional to start with? How in the heck did it get passed if its unconstitutional? Those things should be reviewed up front.
Once the law passes, I believe its the legislative branches role to determine if it IS unconstitutional or not. Repeal the law because its bad if its a bad law.
Legislatures change pretty often. In the U.S. House of Representatives, it’s every two years.
Are you saying that if an unconstitutional law was passed during the Bush Administration, the next Congress shouldn’t repeal it, but wait for the courts?
Of course the legislature can debate constitutionality as a factor in the repeal of a statute just as much as they could for original passage. What has to be borne in mind is that what is said in such a debate does not create legal precedent on constitutionality for the next time the subject comes up again. Only the enacted bill is law, not the House record. That “the 1-percent earnings tax may be unconstitutional” would not become Settled Law out of having been discussed in the committee report.
What one legislature passes another legislature can undo (mostly). But they are loath to declare the preceeding legislature’s actions null and void ab initio, and they are and must be especially careful to avoid even the appearance of passing an *attainder *of unconstitutionality, which WOULD be outside their faculties.
Yep. If its that scary, the courts will step in immediately to shut it down.
If its simply a bad law, go ahead and repeal it. But repeal it because its a bad law and be honest about it. Hopefully, the legislature ahead of you thought it was constitutional, give them some respect on that point. With the division in party politics we don’t need laws repealed every time legislative control changes with calls of “unconstitutional.” Be more honest than that.
The courts don’t do that. Someone who has standing has to challenge the law in court, and it has to go through a number of trials or appeals to get to that level. It usually takes years, and deep pockets to finance it.
Party A controls the Legislature. Party B is the minority.
Party A introduces a bill. Party B opposes the bill from the get go, saying it’s unconstitutional and they will devote all of their efforts to getting it repealed.
The Legislature passes the bill into law on a straight party division in each house. All members of Party A vote for the bill. All members of Party B vote against the bill, arguing it is unconstitutional, and they will do every thing in their power to have it repealed.
The next year, in the elections, Party B makes the new law the centre point of their campaign. Every candidate for Party B makes speeches saying the law is unconstitutional and they will repeal it as soon as they get a chance.
Party B wins the election, gaining a clear majority in both houses of the Legislate.
On the first day in office, the leaders of Party B announce that their first measure will be the repeal of the law, because it is unconstitutional, and the voters have agreed.
The leaders of Party A announce that Party B cannot repeal the law because it’s not the Legislature’s job to repeal a bill because they think it’s constitutional.
Dangerosa and Enderw24, do you think Party A is right?
In the instance of the OP, is the claimed unconstitutionality based on the US or the Missouri state constitution?
Does the proposed legislation purport to prevent any future session of the Assembly from reinstating the taxes? Because if it does, it appears that it could be characterized as the Assembly amending the constitution by statute, and it might be instructive to explore whether it has the power to do so.
Courts don’t just review laws on their own initiative and decide whether they pass muster. Generally, someone has to suffer some harm first before they have standing to challenge the law.
Why does a legislature hold an obligation for waiting for someone to be harmed before they repeal the law based on unconstitutionality? Also, in rare cases, harm can be extremely hard to prove.
Take for example, the Patriot Act. Some people believe it authorizes unreasonable searches in violation of the Constitution. (I don’t, but it is a legitimate view.) no matter how you slice it, the major criticism of the law always comes back to the issue of whether the government is allowed to do certain things under the Bill of Rights. Saying it is bad policy for civil rights reasons is unavoidably tied to the Fourth Amendment, among others.
If I understand you, you’d first prefer that the courts deal with the Patriot Act. But failing that, you’re okay with the legislature concluding that the law authorizes unreasonable searches, so long as they don’t say it violates the Fourth Amendment. That, in my view, is nonsensical.
Nope, I think that someone in party B has an obligation to ask the courts for an injunction when the law is passed. If its really that unconstitutional, the courts will step in before harm is done.
And at that point its the executive branch’s job to determine whether the law is worth fighting for in court.
I think party B has a responsibility to repeal it because they believe its a bad law. i.e. argue for it because its unpopular, or because its unfair. WHY is it unconstitutional? There is a root cause there, and that is the debate that should happen - not the binary of constitutionality AFTER a law is passed. That is the argument that should be being made in the legislature.