Constitutional Overrides?

Ryan Emanaker (College of the Redlands) has an interesting paper on congressional “overrides” of Supreme Court constitutional decisions. Scotusblog has a summary; the full text, with cites to the literature and a table of cases, is here.

Quick summary: the Rehnquist Supreme Court (the last “natural” Court covered by the study) has “nullified” acts of Congress under the Constitution at a much greater rate than any earlier Courts. However, Congress has also “overridden” those decisions quite frequently. The author counts 41 Rehnquist “nullifications” and 12 overrides (29.3%). That is above the level studies have found for earlier periods, and well above the level typically found for overrides of statutory decisions (under 10 percent, perhaps much lower). Apparently, the author says, “it is actually easier for Congress to override a decision based on constitutional interpretation than it is a decisions based on statutory interpretation.” There’s a healthy “dialogue” between the Court and Congress. Maybe the higher numbers—compared to the past—have to do with the longevity of modern-day justices: if Congress cannot “correct” the Court through appointments, legislation will have to do.

There’s quite a bit of conceptual looseness here. The Court doesn’t run around “nullifying” laws. It says things like, “This goes too far”; or, “You can’t do it this way” (but maybe some other way).” An “override” is when Congress says: “Okay, we’ll try again.”

Interesting pattern of factoids: overwhelmingly, the “nullifications” aren’t about some pro-business crusade. The two largest categories are cases on federalism and sovereign immunity (11 out of 41, or 26.8%) and above all on the First Amendment (17 cases, or 41.5%). Think campaign finance, and think porn. Lo, most of the “overrides,” too, fall into those groups and especially the First Amendment. How about child porn on the Internet? How about banning books in the name of campaign finance reform?

Make of it what you will: that’s where the dialogic action is.

Reader Discussion

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on May 06, 2013 at 18:26:31 pm

My former student Ryan, who teaches at a community college in northern California, just won tenure and is doubtless a great teacher. My question to him is what are you counting as a law? 1000-page statutes versus 10-page ones, administrative actions, as Michael points out? Even two liberal justices found objections to the Affordable Care Act.

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Ken Masugi
on May 07, 2013 at 13:51:56 pm

I appreciate Michael's summery of my research. I agree the Court "doesn't run around 'nullifying' laws," however, I would disagree that the use of such a term is indicative of "conceptual looseness." The term "nullification of acts of Congress" is taken directly from a US Senate document where it catalogs all instances of the Court striking down federal law. I think the original list was compiled by Edward Corwin former president of the American Political Science Association (APSA). This data has been used by Robert Dahl as well as numerous contemporary scholars. I think it is important to remember that the Court does not directly take laws off of the books; the law could still be enforced after the Court declares the law unconstitutional. However, the Court decision should provide guidance for all future court cases that arise under the statute.

Provided the data is compiled by the US Senate in the same manner over the last 200 years, then the numbers of "nullified acts of Congress" should be a consistent data maker to test differences in Court-Congress relations over time. To speak to Dr. Masugi's question: perhaps the change over time that my research is identifying if the increased number of laws and their increased length. If more laws are adopted and the laws are longer it would provide a bigger pool of congressional acts for the Court to "nullify."

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Ryan Emenaker

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