DERELICTION OF DUTY: WHEN MEMBERS OF CONGRESS VOTE FOR LAWS THEY BELIEVE TO BE UNCONSTITUTIONAL


Senator Specter identified two significant problems with thatsection. First, the provision sought to eviscerate recent SupremeCourt decisions3 granting the detainees a right to have their habeasclaims heard in the District Court of the District of Columbia.4Senator Specter feared that the removal of habeas corpus jurisdic-tion over these cases would “set back basic rights by some 900years.”5Second, and more fundamentally, Senator Specter believedthat this section of the legislation ran contrary to the plain text ofthe Constitution.6 Under Article One, Section 9 of the Constitu-tion, Congress may only suspend the writ of habeas corpus in timesof “rebellion or invasion”;7 it was clear to Senator Specter thatAmerica was experiencing neither. In an impassioned speechbefore the National Press Club prior to the vote, Senator Spectervowed not to “support a bill that’s blatantly unconstitutional,”8 and introduced an amendment that would have excised from the pro-posed legislation the section purportedly stripping the courts ofhabeas corpus jurisdiction.9 His proposed amendment failed by arazor-thin margin, 51 to 48,10 and the provision that he had a dayearlier lambasted as unconstitutional remained part of the bill.11And yet, incredibly, he voted in favor of the bill.

Nor was Senator Specter the only one to make such a choice.The same habeas-stripping provision gave Senator Gordon Smith(R-OR) “pause.”12 According to Senator Smith, denying detaineeshabeas corpus rights amounted to a “frontal attack on our judiciaryand its institutions, as well as our civil rights laws” that threatenedto destroy a “cornerstone of our constitutional order.”13 Yet, de-spite these grave reservations as to its constitutionality, SenatorSmith voted in favor of the MCA as well.14On the House floor, a third member of Congress, Representa-tive Robert Andrews (D-NJ), expressed “severe reservations” withrespect to the MCA.15 He found the habeas-stripping provision tobe constitutionally “ambiguous,” and, to boot, “not very wise.”16He knew that the bill would require modifications in the Senate orin the Conference Committee to cure its glaring constitutional de-fects. Yet, to “move it forward,”17 he punched “yes” from his Houseseat and voted for the bill as well.18The vote of each of these politicians in support of a bill hebelieved to be unconstitutional constitutes a dereliction of hissworn duty to support and defend the Constitution. U.S. Senatorsand Representatives are bound by the Constitution not to vote forlaws they believe to be unconstitutional. This Article examines theorigins of this voting obligation, and how a shift from a traditionalMadison–Jackson model of coordinate construction has fueled themisperception in the minds of legislators that the role of the judici-ary is to “clean up” whatever unconstitutional laws Congress maypass. This Article explores the punitive consequences for Senatorsand Representatives who vote for legislation they believe to be un-constitutional; the obligations of the President with respect to such
legislation; and how the taint of improper voting should influencea court examining the constitutionality of this bill and otherspassed under similar circumstances.

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https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1212&context=clr