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Does the judiciary owe Congress presumptive deference in reviewing and considering challenges to federal statutes? If so, what standards should courts impose on those making such challenges?
The historical practice of such presumptive deference, the canon of constitutional avoidance, has been reflected in decades of judicial decisions upholding much Congressional legislation. However, some believe that, in light of courts' observance of the canon of constitutional avoidance, Congress correspondingly enacts legislation without taking care that such legislation is actually constitutional.
In recent years, Congress is increasingly likely to pass acts that run to hundreds or even thousands of pages. The bills are typically drafted by staffers, sometimes hastily written and amended at the last moment, and often not read by legislators before votes are cast. Some bills are passed at the midnight hour, sometimes with provisions for expedited judicial review of the bill's constitutionality, as if Congress is leaving wholly to the judiciary the assessment of a law's constitutionality
Some now assert that, given how Congress enacts legislation, courts should rethink the canon of constitutional avoidance.
Our panel will consider this question and the proper applicability of the canon of constitutional avoidance.
- Hon. David M. McIntosh, Club for Growth
- Mr. Clark Neily, Institute for Justice
- Mr. M. Edward Whelan III, Ethics and Public Policy Center
- Moderator: Hon. Thomas B. Griffith, United States Court of Appeals for the District of Columbia Circuit