Rick Pildes sends along this guest post on NAMUDNO:
- In the wake of the Supreme Court’s decision to avoid resolving the constitutionality of Section 5 for now, some confusion has emerged about legal questions concerning the next challenge. In particular, Nate Persily suggested that the recent decision suggests the Court might “perpetually avoid” ever addressing the constitutionality of Section 5. Nate imagines a kind of Catch-22: if any covered entity seeks to argue the Act is unconstitutional, the courts will tell it to try to bailout. If it succeeds, the case goes away. If it does not, then the entity is properly covered and cannot complain about the Act. Hence, the Court will never decide whether Section 5 is constitutional or not. As a matter of law, I think this suggestion is incorrect. Nothing in the Court’s recent decision leads to this conclusion. And the law concerning federal courts and constitutional litigation is also inconsistent with the Catch-22 Nate suggests.
First, in NAMUNDO itself, the water district expressly conceded that its constitutional claim would dissolve if it were permitted to seek bailout. The Court expressly relied on this concession, even quoting it in the opinion’s text. That’s not surprising: without this concession, it would have been much harder for the Court to avoid the constitutional issue. In the next challenge, I would not expect to see a similar concession, if an entity indeed wants to put the Court in a position in which it must face the larger question.
Second, Nate presents four scenarios in which the next challenge might arise. But I believe he misses the most obvious and important one. Suppose a state like Georgia (which filed a brief arguing that Section 5 was unconstitutional) wants to get out from under Section 5 and challenges its constitutionality. The state might do this by seeking a declaratory judgment that it no longer must seek preclearance. Or the state might bring an action in response to a DOJ decision not to preclear some change. The heart of Georgia’s argument would be that it should not have to seek bailout, or prove its eligibility for bailout, because the very fact that Georgia has been singled out for this burden is what makes the Act unconstitutional. The central argument, under either the rational basis test or the “congruence and proportionality” standard, is that the Act exceeds Congress’ enforcement powers because Congress did not adequately justify singling out Georgia (and other covered areas) from non-covered areas from the burdens of Section 5. That is the argument a number of Justices pursued actively at argument; it’s the argument to which the opinion expresses some degree of openness. If it’s unconstitutional for Congress to single Georgia et. al. out in this way, then the Court cannot avoid that question by telling Georgia to go seek bailout.
The problem is that Section 5 involves a classification (covered and non-covered states) and the state of Georgia would be challenging the validity of that classification. As a legal matter, it is not an answer to that kind of challenge for a statute to create an escape valve from the classification; it’s the classification itself that is at issue. Suppose a state required unmarried but not married women to seek court approval (an escape valve, akin to bailout) for an abortion; if an unmarried woman challenged the constitutionality, it would be no answer for a court to conclude that the judicial bypass provided a constitutionally-adequate escape valve, so that the Court could avoid the constitutional question. Even if Congress could require all women to seek judicial approval, the Court would hold the unmarried/married classification unconstitutional. Or suppose a public school system presumed students of one race should be put in “remedial” schools rather than regular schools, but those students could take a test and if they scored high enough, escape this system by being moved to the better schools. Surely the escape valve of the test is no basis for avoiding the question whether any race-based presumptive classification like this is constitutional.
Now take Section 5 itself: suppose Congress had decided which states to cover in a transparently arbitrary way, say by flipping a coin, but the bailout option existed. If the classification in the statute were unconstitutional — as it obviously would be in this hypothetical– then I think it’s easy to see why the bailout escape valve is not sufficient to avoid the constitutional question of whether Congress has exceeded its power in the first place by forcing jurisdictions to go through the bailout process. The same applies to the actual Section 5: If the Court believes the coverage formula is unconstitutional, then by definition the Court has decided there is a constitutional injury to which the option of bailout is not an adequate answer (perhaps if a statutory escape valve involved a completely de minimis or trivial act, such as filing a formal paper that would be approved automatically, the answer might be different, but no one thinks the current bailout structure under Sec. 5 imposes a trivial burden like that).
I’ve tried to illustrate as a matter of basic legal analysis why this “perpetual avoidance” suggestion is wrong. I could also provide many Court cases illustrating these points, but perhaps the most direct is Northeastern General Contractors, which was unanimous on the point relevant here. The Court held that being subjected to an unconstitutional process creates a constitutional injury, whether or not the particular plaintiff was entitled to the benefit at issue or not. The Court held that it had to reach the merits of a constitutional challenge to a 10% set-aside for minority businesses, regardless of whether the plaintiff could show that any particular contract would have been awarded to it or any other non-minority bidder but for the set-aside. In other words, being forced to go through an unconstitutional process is itself constitutional injury here and now, one that the Court does not, and under its doctrine cannot, avoid.
Thus, as a purely legal matter, I do not think Nate’s analysis of “perpetual avoidance” is correct. And my analysis says nothing about any kind of special solicitude the Court might have for laws that single out states, like Section 5 –even though it is clear from NAMUNDO itself, from the Court’s 11th Amendment cases, and from Justice Kennedy’s repeated concerns for the “equal dignity” of the states, that the Court is likely to be even more aggressive in protecting the states from unconstitutional classifications than it might be for other classifications. Instead, my point is more basic than that: the Court does not avoid holding unconstitutional classifications unconstitutional merely because a covered person or entity can pursue an escape option the law also creates.
To be clear, I am not expressing any view on whether Section 5 is constitutional. The point is that, if the Court believes it is, the Court by definition has decided there is a constitutional injury to which the option of bailout is not an adequate answer. NAMUNDO and established law, as well as the simple logic of challenges to the classifications a law creates, do not provide any support for this notion of perpetual avoidance; indeed, the last two point powerfully in the other direction. In addition, I am not predicting that the Court will address the constitutionality of Section 5, either soon or down the road. That first depends on whether jurisdictions decide to mount future challenges. And the Court has many discretionary doctrines to avoid the issue, including by not agreeing to hear any such case in the first place. Indeed, Indeed, the Court can change the way it handles cases like this, but that would require a doctrinal change. But Nate writes that maybe “the Court has placed itself in a position” where it would never have a legal basis for confronting the constitutionality of Section 5. That is rather clearly wrong. Nothing in NAMUNDO itself, or existing law, requires that conclusion.
One last note: Armand Derfner has made what I read as a quite different point from Nate’s about the possible relevance of bailout. My initial reaction is there’s somewhat more to Armand’s point, and if I have anything useful to say about it, I will another time. But this post has gone on long enough.