Congress and constitutionality

Given the recent Supreme Court oral arguments over the constitutionality of the individual mandate and our reading for Monday, I was reminded of Nancy Pelosi’s comments in October 2009 regarding the health care reform’s constitutionality.

In an incident covered by many conservative blogs, a reporter asked Pelosi where exactly Congress claimed to derive the authority to enact an individual mandate to purchase health insurance. She dismissed the question, saying “Are you serious? Are you serious?” Some people interpreted this as Pelosi implying that it didn’t matter whether the reform was constitutional or not. The next day, her office released a statement explaining that Pelosi believed it was constitutional given the Commerce Clause. The issue was pretty much ignored by most of the major news organizations, although a number of conservative bloggers latched onto it.

The whole exchange, though, raises the question of whether Congress must consider the constitutionality of a law when passing it. Should Congress simply pass the laws it thinks are right/best, and then leave it to the Courts to determine their constitutionality? Or should Congress take constitutionality into consideration when legislating?