Yeah, that’s it exactly. If it’s unconstitutional, that ought to trump everything else.
But I think that what has happened, is that Congress started this way way back by telling courts they couldn’t review taxes until they were paid. And the courts accepted it, because it dramatically reduced the frivolous filings and their workload.
The end result is this crazy doctrine that plantiffs don’t have standing until after the plantiff has actually suffered harm, nevermind how much harm is bearing down on poor plantiff.
"If I were not constrained by what I believe is binding precedent ... I would hold Section 1713 is unconstitutional because it violates the Separation of Powers doctrine," Molloy wrote in his 18-page decision.
But he added higher courts have held that "so long as Congress uses the words without regard to any other provision in statute or regulation that applies,' or something similar, then the doctrine of constitutional avoidance requires the court to impose a saving interpretation(.)"