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Wednesday, June 23, 2021

Even If Congress Pretends H.R. 1 Is Constitutional, The Supreme Court Can’t

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The Democrat House majority has approved H.R. 1, an almost 800-page law with a 15-page table of contents and a final section reaching five digits. The law is designed, it says, “to protect the right to vote, to regulate elections for Federal office, to prevent and remedy discrimination in voting, and to defend the Nation’s democratic process.” It’s titled the “For the People Act of 2021.”

A neutral observer might be surprised to learn there is not a single congressional hearing nor legislative factual finding demonstrating the need for any of the hundreds of provisions in this all-encompassing legislation. The full text of the bill was first introduced on January 3, 2019, and it was passed by the House barely two months later, with no consideration by any committee, in a strict party-line vote of 234-193. It went nowhere in the Republican-controlled Senate.

After the 2020 election, the House passed it again on March 3, 2021, this time by a closer 220-210 vote, but still with no committee consideration or legislative finding. Its supporters call it “the most comprehensive anti-corruption reform since Watergate,” and the Senate’s Democrat leadership is threatening to end the established filibuster rule requiring bipartisan support for legislation so it can pass H.R. 1 before the 2022 election.

If Congress were to enact such a sweeping law – replacing election laws in all states – it would be doomed by a constitutional principle even the most liberal justices of the Supreme Court have recently endorsed.

Copyright law provides the most recent precedent for invalidating H.R. 1. In 2019, the Supreme Court heard a challenge to a 1990 law eliminating the sovereign-immunity defense states had invoked if they were sued for copyright infringement. A photographer whose videos had been used by North Carolina without his permission sued the state, claiming the 1990 law removed its claim that it could not be held accountable in court for infringement.

A unanimous Supreme Court – including the late Justice Ruth Bader Ginsburg – found the 1990 law unconstitutional because it was too broad. Justice Elena Kagan’s opinion in Allen v. Cooper, issued

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