The most optimistic way to consider our current national predicament might be to look back at the calamity of the Great Depression, which led to the New Deal. Then, as now, a reactionary federal government struggled to handle a national emergency that exposed deep social and economic injustices permeating society. That story ended well. The disarray led to the election of FDR, who seized the opportunity to enact a transformative economic agenda including Social Security, labor protections, massive stimulus spending, and banking and monetary reform. We ended up with a radically more just society.
We can now dare to hope for the same today. Against all odds, an ideologically reinvigorated Democratic Party has won the House, Senate, and presidency. Democrats have the opportunity to finally deliver long-overdue reforms to address structural economic inequality, provide every American with adequate health care, and take aggressive action to save our environment before it is too late.
This will either force the court to lay off of progressive programs, or enable progressive policy aims to be achieved even if it intervenes.
But Minority Leader Mitch McConnell has left Democrats with one big problem: the courts. Even before the death of Justice Ruth Bader Ginsburg, there was little chance that the conservative judiciary would let this dream come to pass. The New Deal itself was almost completely dashed by a Supreme Court in thrall to free-market ideology. Early on, the court used a libertarian spin on due process and an incredibly narrow view of the commerce clause and congressional power to strike down big parts of the New Deal. As late as 1937, its fate was in doubt, though ultimately the court relented to pressure from President Franklin D. Roosevelt and the public. With the confirmation of Amy Coney Barrett, there is no question that today’s court will revive those same doctrines—this time with some new twists—to eviscerate any ambitious Democratic agenda that is enacted.
Progressives are not blind to the threat of a reactionary Supreme Court. That’s why discussions of court packing and other kinds of court reform were briefly front and center before the election. That momentum has stalled with the realization that 50 Senate seats just aren’t enough for the knockdown, drag-out fight that such a move would require. But there’s another way to stop the court from totally derailing progressive economic reform that Democrats can use right now, one that no one is talking about.
Democrats could deploy a new legislative tactic that has never been tried before: They can include “clearly constitutional” precautionary backup provisions in progressive legislation that would automatically take effect if the primary policies in the bill are invalidated. The backup provisions would usually involve extreme, but undeniably constitutional, policies designed to achieve the same original goals as the preferred policy. This will either force the court to lay off of progressive programs, or enable progressive policy aims to be achieved even if it intervenes.
Consider a simple example to see how this would work: a wealth tax.
President Joe Biden has already proposed the American Rescue Plan, a $1.9 trillion government spending program to fight the COVID-induced economic depression. To get ahead of concerns about deficit spending, let’s imagine that Democrats put in a 2 percent annual wealth tax, to be assessed on all fortunes above $100 million. But House Speaker Nancy Pelosi’s lawyers inform her that the conservative courts are skeptical of the tax’s constitutionality. As a precaution, the speaker could insert an automatic backup provision into the wealth tax bill, which stipulates that if the wealth tax is invalidated by the courts, the stimulus program will instead be funded by dramatically increasing marginal income tax rates for high-income earners to 80 percent.
Thus, you have two alternative policies contained in one bill. Most Democrats—and economists—probably prefer the wealth tax as a better, fairer policy. But big increases in marginal tax rates could achieve roughly the same goal, albeit less efficiently. And although conservatives might abhor this as a matter of policy, perhaps even more than the wealth tax, Congress can clearly set income taxes wherever it wants, legally speaking.
By using this tactic, Congress forces conservative judges to confront an unpalatable decision: intervene and strike down the wealth tax, ushering in a more disruptive but clearly constitutional alternative policy, or let the tax stand. Either way, Congress achieves its underlying goal of taxing the rich to pay for the stimulus.
Take another immediate progressive priority: democracy reform. One of the most powerful proposals in H.R. 1, the Democratic election reform bill, is to reduce partisan gerrymandering by requiring states to use independent commissions for congressional redistricting. But there are very valid concerns that conservative judges will use a nebulous doctrine called the “anti-commandeering doctrine” to strike this down under the 10th Amendment. To hedge against this risk, Congress could add a backup to H.R. 1, requiring that if the first proposal is deemed unconstitutional, all states must adopt multimember congressional districts instead of the current single-member structure, and that those elections be conducted by a proportional representation voting system. This more radical backup would achieve the original goal of countering partisan gerrymandering, and there isn’t a credible constitutional argument against it.
The courts may not like the concept of backup legislation, but there is no precedent that makes it illegal. Congress is simply anticipating possible legal issues with its legislation and preemptively stating what it wants to happen if those issues are constitutionally significant.
As Barrett herself noted in her confirmation hearings, Congress already does this whenever it inserts “severability” provisions in laws, which state that if part of the law is invalidated, the rest of the law should stand. Congress has never tried far-reaching backup provisions, but in a couple of rare cases, it has used less aggressive versions of the same concept, and the court has accepted the validity of those backups without question.
In the 1980s, for example, Congress passed a budget provision that allowed the comptroller general to impose budget cuts if Congress failed to meet certain spending targets. Anticipating that this provision might be found unconstitutional, Congress included an automatic backup that created an alternative mechanism for Congress to quickly pass budget cuts instead. The Supreme Court indeed found the comptroller mechanism unconstitutional and allowed the backup to go into effect. The justices said that the backup provisions were “fully operative as law” and that their decision “simply permits the fallback provisions to come into play.” In 2007, the Supreme Court briefly discussed a backup provision in a case involving the Bipartisan Campaign Finance Reform Act, and no justice questioned the provision’s validity.
Congress could even take the more extreme step of using backup provisions unrelated to the main policy in a bill to coerce the court into letting the legislation stand. In the wealth tax example, say the backup provision instead repeals the Hyde Amendment, thereby allowing federal funding to be used to pay for abortions. While conservatives might claim that Democrats are basically blackmailing the courts to uphold the wealth tax, courts have consistently found no constitutional issues with Congress acting this way in other contexts. For example, the court has held that Congress can change underlying law relevant to a specific case while that case is being heard in order to explicitly dictate what the outcome of that case should be. And it has also found no issue with legislation where Congress or state legislatures have explicitly stated that if part of a law is found unconstitutional, the entire law must be struck down as well (contrary to the standard of allowing the rest of the law to stand).
Backup provisions could be used to protect many of the other proposed progressive economic policies that are at risk of judicial invalidation. A “Medicare for All” bill, for example, could be backed up with a deeply subsidized version of a traditional public option, along with other changes to make private insurance less attractive. A “cap and trade” or carbon tax climate bill could be backed up with an aggressive command-and-control program with specific congressionally mandated caps on emissions for particular industries. Legislation creating wage boards or strengthening collective bargaining could be backed up with massive minimum wage increases and limits on corporate access to federal bankruptcy or liquidity protections. The entire idea basically boils down to—let us do this, or we’ll achieve the same thing in a way that is likely even less desirable to you.
This is the time to act: Progressive policymakers and experts should flesh out this strategy, and its application to specific parts of the legislative agenda, now. That way, Congress can pass transformative legislation that will actually survive constitutional scrutiny from the stacked courts they have inherited from President Donald Trump. If not, Democrats may well squander this rare, precious chance to achieve the generational reform our country so desperately needs.
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