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How Democrats Can Insulate New Laws From a Hostile Supreme Court

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It’s a tough time to be a Democrat. On top of fears about the state of health care, anger at the treatment of children at the border, the growing anxiety about foreign interference in our elections, and the dread that accompanies the words “Donald Trump’s second term,” Supreme Court Justice Anthony Kennedy’s retirement represented one final sucker punch.

Facing the first full term with Brett Kavanaugh, a full-throated conservative, on the Supreme Court, Democrats are despairing. Indeed, there are some whispered fears that the next Democratic administration may have already failed, with a 5-4 Republican-appointed Court able to both strike down any newly passed progressive statutes while also ripping away all notable laws and rules from the last 80 years, foreclosing even the possibility of government action to protect the weak from the powerful.

Yet there are steps that Democrats can and should take to mitigate the damage that the new, very conservative Supreme Court can do to Democratic laws and policies. And it won’t take threatening to pack the Court, either.

Most importantly, Democrats will need to start assuming greater judicial hostility to the laws they write than they have in the past, and begin to draft them to preemptively survive harsh judicial scrutiny.

Writing laws with the explicit goal of shielding them from a hostile judicial eye has not been a priority to this point. Famously, when Nancy Pelosi was asked about whether the ACA was at risk of judicial challenge in winter 2009, her response was “Are you serious?” Starting from the premise that any major law will face serious challenge for years is the first step to protecting new laws.

Second, Democrats have to use the tools available to them during the drafting process to protect their laws against judicial overreach. The easiest tool is to make their new laws fully severable, so that a flaw in one piece of a law will only result in that piece being struck down rather than the whole law. While the Dodd-Frank Act did contain a severability clause, amazingly the Affordable Care Act did not, which almost sunk it in litigation.

Routinely adding severability will necessitate the end of what we might call “load-bearing policies”—concepts that everything else in a law depends upon to work, such as the individual mandate. Instead, redundant structures will become important to laws. It has been argued that the reason for the absence of a severability clause was that the Senate bill was expected to be revised in conference between the House and Senate, and Scott Brown’s Senate victory made holding a conference impossible. But this is exactly the point—Dems should have severability clauses in all bills from the start.

Third, Democrats need to stop shying away from calling things taxes. Part of what almost took down the ACA is that the mandate was alleged to be not a tax but a regulation of commerce under Article I’s Commerce Clause. (Ultimately, John Roberts asserted that the mandate was a tax, saving the law.)

Democrats didn’t want to be accused of raising taxes, but were anyway. The new, more progressive Democratic Party seems to have less anxiety about creating a new tax if it can ensure that the vast majority of Americans end up saving money overall.

Fourth, look for Democrats to push for legislation to take effect faster, to create immediate benefits. Judges are people like anyone else: They’re influenced by both theory and real-world consequences. It’s easier to wipe away a law because of an arguable legal flaw when the law hasn’t yet taken effect, rather than after it has already changed people’s lives.

Fifth, Democrats should consider writing a provision in all major pieces of legislation requiring that any judicial challenges be fast-tracked to the Supreme Court, possibly by ordering challenges be made in a specific federal court of appeals under an expedited schedule. If the Court can rule on a law quickly, that ups the odds that the same Congress can fix any defect before they lose a majority in either body.

Sixth, Congress probably has to rely less on rulemakings. For four decades now, Congress has increasingly enacted policy via requiring agencies with expertise on specific matters to issue rules. As the Supreme Court increasingly seems skeptical of deferring to executive branch agencies, this arrangement is coming to an end, leaving Congress with little choice but to make detailed policy calls itself.

That is a vexing task given the slow loss of expertise and funding of congressional committees and resources on Capitol Hill, but it can be improved by increasing the resources and staffing of Hill offices and restoring entities like the Office of Technology Assessment, which then-Speaker Newt Gingrich closed in 1995.

These ideas are not a panacea. In the short term, legislative gridlock could force the next Democratic president to rely more on rulemaking, making progress with existing laws already passed by Congress. And for the immediate future, Democrats have to accept that the Court will be a harsh judge of their laws and policies from now on, and adapt to that new reality. Frankly, it’s long overdue; the Court has asserted its authority brazenly for some time.

In the end, Democrats have to recommit to the practicing of politics.

So, if you’re worried about the Court, the best advice I can give is to go and volunteer some time knocking doors this fall, phone your senators about the Court, and take some action.

Ultimately, it all comes back to the ballot box.

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