This law in its totality had been very carefully balanced, through compromises in the legislative process. Both political parties were constantly on the alert for provisions that would hurt them more than the other guys. If something like that got in, it was only in return for some other provision that favored them. This law would never have gotten out of Congress if, on balance, it provided clear advantage to one party over the other. Striking provisions at random, with no consideration given to balancing the effects, is a fright scenario for both parties. Given what this law is about, and the considerable time and expense spent on making it "politically neutral," the courts should throw the whole thing out if they have to throw out any of it. To do anything else is to tilt the political playing field. That is no role for the courts. |
It strikes me that any piecemeal "striking" of provisions in this law is likely to have profound partisan political effects that judges should not be in the business of creating.