‘Never tell me the odds’: Why lawmakers should take constitutional risks

A well-established line of research on systems of separation of powers argues that lawmakers anticipate courts’ constitutional review of their acts and strategically avoid drafting policies that are at risk of a judicial veto. Lawmakers’ so-called ‘autolimitation’ has attractive properties: Unconstitutional policies are kept off the books without the need for judicial interventions and otherwise overburdened courts need to resolve fewer cases. Contrasting these claims, I argue in this paper that lawmakers who ignore constitutional concerns adopt better policies. I develop a formal model that shows that all too risk-averse lawmakers disproportionately shy away from policies that would survive judicial scrutiny, and hence fail to translate their constituents’ demands into policy. Given that lawmakers possess only imperfect information about how courts would decide their cases in the future, I show that the benefits of lawmakers’ strict auto-limitation are outweighed by its costs. The formal model provides an explanation of why we often observe lawmakers casting constitutional concerns about their policy choices aside, and I make the case that lawmakers’ choice to take constitutional risks is in the interest of both their constituents and courts themselves.