Legislating Violations of the Constitution

With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment's separation of church and state. The Public Expression of Religion Act - H.R. 2679 - provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.

A federal statute, 42 United States Code section 1988, provides that attorneys are entitled to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her constitutional or civil rights. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is entitled to recover attorney's fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney's fees paid.

Congress adopted this statute for a simple reason: to encourage attorneys to bring cases on behalf of those whose rights have been violated. Congress was concerned that such individuals often cannot afford an attorney and vindicating constitutional rights rarely generates enough in damages to pay a lawyer on a contingency fee basis.

Without this statute, there is no way to compensate attorneys who successfully sue for injunctions to stop unconstitutional government behavior. Congress rightly recognized that attorneys who bring such actions are serving society's interests by stopping the government from violating the Constitution. Indeed, the potential for such suits deters government wrong-doing and increases the likelihood that the Constitution will be followed.

The attorneys' fees statute has worked well for almost 30 years. Lawyers receive attorneys' fees under the law only if their claim is meritorious and they win in court. Unsuccessful lawyers get nothing under the law. This creates a strong disincentive to frivolous suits and encourages lawyers to bring only clearly meritorious ones.

Here is the Roll Call vote for the bill.