Many have opined on the strengths and weaknesses of candidates and given endorsements on whom to vote for. That’s not the focus of this post. Rather, this is to give a different prism through which to view candidates running for legislative positions. The candidate who is knowledgeable about how to craft legislation (or at least willing to listen to advice on how to do so) that will survive judicial review is better suited for office. This view shouldn’t be used to winnow candidates, but if a person is undecided this prospective is good to use as a tie breaker so to speak. Since this is a long and somewhat meaty post a summary can be found in the last paragraph.
With HB2 before the Supreme Court next week, it’s time to look at the legislative process to examine how legislation is crafted and what makes legislation more likely to survive judicial review. HB2 will be used for illustrative purposes. For the sake of full disclosure I will note that I submitted a section of a brief on HB2 to Texas Right to Life to send to their legal counsel. The ideas posited in the brief were largely disregarded. This is unfortunate because the Fifth Circuit’s reasoning was almost verbatim to the brief portion submitted.
When crafting legislation likely to undergo judicial challenge (let’s assume a Constitutional issue) it’s important to craft the legislation to withstand the challenge even if the desired goal isn’t as robust as would be desired. To begin with, rather than look at what do we want to do (end abortion) look for what can we do (protect the health and safety of women.)
Standard of Review
The courts look at Constitutional challenges through two standards of review, rational relationship and strict scrutiny (yes, there’s a narrow sliver that gets “enhanced rational relationship” or “intermediate scrutiny” but it’s beyond the scope of this post.) Rational relationship means is the law rationally related to the purpose for which it is intended. This is a low standard of review where, “the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Williamson v. Lee Optical, Inc. 348 U.S. 483 (1955) Bills reviewed under a rational relationship standard usually are found to pass Constitutional muster.
Strict scrutiny is a usually fatal. To survive strict scrutiny the legislative body must
1) have passed the law to further a compelling government interest
2) narrowly tailored the law to achieve the interest
(Note that the Religious Freedom Restoration Act is even more restrictive the second prong required the legislation is the least restrictive means of furthering the compelling interest.)
The legislation must survive both prongs of the test, and both prongs have to be considered in the entire legislative process since committee testimony and legislator statements can be used as evidence to establish the intent of the legislation and the intent of the legislation effectively determines what standard of review is used.
Almost all legislation that is controversial will have a severability clause so that if one portion of the law is found to be unconstitutional the rest of the law can stand. So with HB2 as the example the courts look at the three separate changes: moving the enhanced restrictions on abortions to 20 weeks when babies can feel pain rather than the 26 week third trimester mark, requiring physicians to have hospital privileges, and requiring abortion centers to be ambulatory surgical centers.
Crafting legislation such as this with different purposes and potentially different standards of review is risky as it could be separated into two (or three) different bills and have two different committee hearings and votes. In such a case the separate bills can be challenged, but the Courts will have to decide what standard of review to use for each separate bill even if they are all combined into one lawsuit. The take away is the exact same verbiage combined in one bill or broken into two bills can have radically different legal review since the purpose is distinguishable. The same language, the same effect, but it’s allowable under rational relationship and not allowable under strict scrutiny.
When deciding what standard of review the courts have two primary considerations. They look at what is the purpose of the legislation, and they weed out any “heckler’s veto.” It doesn’t matter how loud the opposition cries, and it doesn’t matter how often they repeat statements regarding the intention of the legislation. If the legislative intent is clearly stated and the hearings/testimony is in support of the intent the opposition’s assessment is not considered and the legislative intent, as set forth in the legislation, is used to determine the standard of review.
On the other hand, if the opposition’s statements are supported by the committee hearing questioning/testimony, individual legislator’s statements that write, sponsor, advocate for, etc. the legislation then the courts have to give consideration as to is the intent of the legislation actually different than what is stated in the plain language of the legislation. Even though the legislation states all the right things, if the actual intent of the legislation can be proven different than the plain language a different standard can be used.
Even though the HB2 makes statements about protecting the health and safety of women (a rational relationship standard) if the legislation’s intent is determined by evidentiary means to be to burden abortion (strict scrutiny) the entire legislation can be reviewed under strict scrutiny analysis. Despite a severability clause a want of development in committee testimony coupled with the statements of individual legislators can leave the clause functionally useless as each separate action is considered under strict scrutiny.
Defending the Legislation
The way the legislation is constructed should be done in a manner that allows the legislation to be defended on constitutional grounds even if some specific instances of enforcement are deemed unconstitutional as applied. Establishing a valid constitutional piece of legislation, especially if the matter has a chance to go before the Supreme Court, is useful to set precedent even if application is going to be difficult. With HB2, the underlying law is that:
1) restrictions on abortion cannot create an undue burden
2) distance to abortion providers does not create an undue burden.
The first factor is the constitutional principle that is involved. Should the legislation not survive a challenge on the constitutional challenge the second factor is not reached. The second factor is not the constitutional principle, but rather is law that impacts the application of the legislation to the constitutional principle.
Well constructed and defended legislation will be both reviewed for what standard of review and application. This leaves three possible outcomes. The legislation can be deemed constitutional, unconstitutional, or constitutionally sound but unconstitutional as applied. Either constitutional outcome has great value. The legislation either survives in whole if found to be constitutional, or may be hamstrung but still serves to establish the overall legal framework for analysis if unconstitutional as applied. This then sets the lines for debate in other legislative bodies (the Oklahoma legislature as an example) and the legislation more artfully crafted to adhere to the constitutional principle and lie within the acceptable application as set forth in the court case.
This is a long and somewhat meaty entry, so here’s the main points to remember:
1) Individual legislator knowledge on how to craft legislation is an important tie breaking factor to consider when voting.
2) Crafting legislation is a process. Even if all the “right” words are in the final passed legislation the process is scrutinized to determine what standard of review is used to review the legislation.
3) Two standards of review are used. Rational relationship usually means the legislation survives, strict scrutiny usually means the legislation fails.
4) A severability clause is functionally useless if the same standard of review is used for all parts of the legislation.
5) The very same language can be analyzed differently if cobbled together in one bill or separated out into two. Same language, same effect, but different standard of review so different outcome.
6) The legislation needs to be crafted with defense in mind. Even if the final outcome is unconstitutional as applied the legislation serves to establish the legal framework for future pieces of legislation and a more impactful resolution can occur when future legislation is drafted.