Professor Tribe has pointed out to me, in response to my recent blog post about the possible impact of DC happenings on judicial deference to Congress, that: “. . . deference to Congress isn’t either good or bad in itself, and a decline in such deference, if that were the result of Congress’s dysfunction and its inability to reopen the government without playing with debt default fire and taking hostages, wouldn’t be good or bad in itself either. I’d want judges to defer in cases like the challenge to the Affordable Care Act but not in cases like Holder v. Humanitarian Law Project.”
A better question that the one I articulated in the first blog post is whether the dysfunction in Congress might make courts more deferential when they should be, and less when they should not be. There is perhaps an argument that when, in an era of dysfunction, Congress does act on something, it should EITHER be given greater deference than in normal times, as reflecting a broad consensus following careful thought, OR, be given lesser, as reflecting a hot-headed surrender to short term rights-denying passions. It would be nice to think that such an approach would protect rights in both cases. It would require looking at the nature of the underlying issue and at the processes of Congress.