The Economics of Constitutional Challenges
Most Americans understand, at some level, that they have certain constitutional rights. Most probably can’t name any but the most popular, and even then probably don’t understand the full scope or limits on those rights. Thankfully, we live in a time when most of these constitutional rights have been heavily litigated, producing reams and reams of case law. Today, if you were to be arrested in a way that violations an established constitutional rights, all you would have to do is pay for a lawyer to argue the case before a judge (sometimes just to the cops) and you get off for cheap. Heck, even a public defender can do that much.
In situations where the rights have not been litigated, or the case law is contradictory (a.k.a. racial factors in public education), you don’t have such cheep options. You either accept the status quo — generally set by the executive — or you hirer a lawyer to argue the case before a District Judge, an Appellate Judge, and then finally the Supreme Court. Such cases often run into the seven digits once everything is done. Thankfully, when most Americans find themselves on the expensive end of a Constitutional question, they can appeal to the ACLU to help out. The ACLU will marshal its army of pro bono attorneys and argue the case from start to finish. Pretty handy service.
But there is another sort of Constitutional challenge deal with non-individual rights and very much out of the purview of the ACLU. These cases can be sweepingly generalized as balance-of-power cases. The question boils down to, “Does $governmental_entity have authority to do $constitutional_action?” Perhaps the most famous question is “Does the President have the authority to go to war without the approval of Congress?” (The answer, fwiw, is essentially “yes, with a but.”) But what you might be wondering is who pays for that litigation to answer that question? On one side you have the President as defendant, who has the White House Counsel and the Justice Department, paid for by the government… but who is the plaintiff? Often time it’s the Congress — usually under the control of the opposition party — who has their own government paid lawyers. Add in the government paid judges to adjudicate the whole thing, and you have a three-way government tussle.
Okay, but what about legislative activities, where the President just signed the bill approved by Congress. No federal government plaintiff there. Someone has got to bring the suit and be prepared to pay big, win-or-lose. Sometimes you can get a state political entity to bring the suit, as with New York City in the line-item veto case brought against President Clinton in the 90’s. Which brings us finally to the seed of this post, which is what happens when the legislative act benefits a state political entity?
Enter the District of Columbia, a so called Federal Eenclave, and the only piece of the Continental U.S. to have no representation in Congress. Thanks to the 23rd Constitutional Amendment, the District has a vote in the Electoral College, and thus a say in picking the President. And House rules provide a non-voting delegate who is said to advocate on the District’s behalf, but without a vote, one would be hard pressed to call it representation. But, for the first time in American History, it looks like the Congress is going to enact a law giving the District its own voting representative (and one to Utah).
Now, I’m not going to dig into the policy positions of whether it’s a good idea or not; nor am I going to jump into the dispute of whether it’s constitutional or not. The point is that it’s never been done before, and thus never litigated, and thus we simply don’t know. So, who’s going to pay for the lawsuit to find out? Obviously the District itself prefers what will soon be the status-quo, so there is no governmental plaintiff. Which means it falls to a private group, and the word on the street is that no one has the cash.
Of course, the law can sit on the books for years before it’s challenged. There is no statue of limitations on unconstitutional legislative acts… but it does point out a somewhat perverse aspect of our constitutional enforcement process. In times when private money is tight, the government has the potential to get away with unconstitutional behavior which, in times of plenty, may have been stopped by judicial review.