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