Second-Bite Lawmaking

Abstract

Lawmakers can be quite persistent as they battle to advance their favored agendas, even after unsuccessfully defending against constitutional challenge. When a law is struck down because it is constitutionally defective, the architects of the defeated law will frequently go back to the drawing board and try again, making modifications they hope will allow the new version to survive another round of litigation. Sometimes this second bite at the lawmaking apple looks like the very embodiment of good faith inter-branch dialogue. But sometimes these repeated efforts reflect the deliberate evasion of constitutional duty across multiple cycles of lawmaking and litigation – or as Justice Kagan recently put it, the “pouring of old poison into new bottles.” To distinguish between these two different types of official persistence, we must first understand second-bite lawmaking as a pervasive and trans-substantive phenomenon – one that calls for an adjudicative framework well suited to its unique features.

This Article is the first to serve that purpose, offering three case studies in the areas of voting rights, free speech, and religious liberty. The case studies demonstrate that as government defendants repeatedly try to produce a law that will withstand judicial review, they learn how to conceal the defects that were fatal to prior versions. Courts will thus eventually be presented with laws that have been scrubbed clean of their predecessors’ most obvious flaws. When examining these sanitized versions, how should courts weigh the failed attempts at constitutionally legitimate lawmaking that preceded them? The Article considers what guidance the Supreme Court has offered on this question. Carefully examining cases in which the Court has expressly considered the appropriate implications to draw from prior iterations of a challenged law, the Article reveals that over time the Court has abandoned what was once a tolerably sensible approach to second-bite lawmaking. The Court’s latest pronouncement threatens to eviscerate the substantive constitutional principles at stake in these multi-phasal disputes.