The Problem With Congress “Letting The Courts Decide”

On Thursday at the Federalist Society’s annual lawyers convention, U.S. Rep. Ron DeSantis (R-Fla.) made an incredibly important point about Congressmen who act without regard to the Constitution, saying they’ll let the courts decide.

This year’s convention was focused on the late Justice Antonin Scalia, and this specific panel was focused on Scalia’s views on federalism and the separation of powers.

“I just wish [Scalia’s] wisdom would make its way more into the halls of the United States Congress, because Scalia understood that you have to defend your own turf,” DeSantis said. “One of the things that frustrates me is, some of my colleagues will say, if we’re debating a bill, ‘Is it constitutional? Do we have this power? Does it conflict with the Bill of Rights? Well let the courts figure that out. We vote for whatever we think is good, unless and until the courts stop us.'”

But DeSantis explained the glaring problem with that thinking.

“Well the problem with that is that the courts can only decide cases or controversies. So basically anything that would not lead to a lawsuit, you’re basically saying there’s not going to be anyone that’s going to stand up for the Constitution. Our duty is to defend the Constitution and act in conformance with the Constitution. So I’ve always said, if there’s a bill that’s not constitutional, my duty is to vote against it regardless of what the courts may or may not do.”

Politicians in all branches of government swore an oath to defend the Constitution. When it doesn’t, the Constitution suffers and our rights and liberties that it defends suffer. And the courts can only correct so much.

DeSantis applies this to the executive branch:

“It’s not just the Congress. I mean President Bush when he signed McCain-Feingold, he said, ‘I think it’s unconstitutional but we’ll let the courts figure that out.’ That’s not the way you’re supposed to do it. If you’re not convinced it’s constitutional you’ve got to err on the side of exercising your authority to defend the Constitution.”

When I discuss my understanding of the role of the courts in defending the Constitution, I regularly emphasize this point: When was the last time you heard a Congressman ask, “WAIT GUYS—is this constitutional?”

It’s refreshing to hear a Congressman ask that.

Shohana Weissmann is the Digital Director for Opportunity Lives. You can follow her on Twitter @senatorshoshana.