Friday, December 29, 2017

Politics and Constitutionality

By Michael Dorf

For this final post of 2017, I just want to direct readers to my latest essay on Verdict, where I argue that insofar as the new tax law punishes blue states and their residents, it is unconstitutional--even as I acknowledge that it would be very difficult to prove the claim in court. Here I simply want to add that I am aware of a potential critique, according to which it is never illicit for Congress to favor residents of the states with a majority of representatives; that's just politics, the critique goes; if you want more benefits for your state, win more elections.

I would say three things in response. First, there's a difference between members of a legislature looking out for their own constituents--which we expect--and looking to punish voters in jurisdictions that voted for the minority party--which we have not hitherto expected. Second, as I said, I realize that this distinction in principle will be very difficult to apply in practice, which is why I expect any such claim to fail in court. And third, as I say in the column, failure of an objection in the courts does not mean the objection is invalid; it just means that there are institutional limits to where the claim can be pursued.

Happy new year and thanks to all the DoL readers.