However, this power was executive and not judicial in nature, and its existence could not remedy the constitutional defect in the sentencing process.

Historically, courts have been reluctant to overturn lawmakers' actions without some compelling reason, like a finding of a constitutional defect.

The incongruity of its provisions, a grave constitutional defect, was in part attributed to obscure language.

The current law was passed in 1981 to correct these constitutional defects.

Congress responded in 1984 with changes to remedy constitutional defects.

Adarand now argues that changes to the program since then have not cured the basic constitutional defect of incorporating a racial classification into federal law and regulations.

New York's highest court found a constitutional defect in the state's death penalty system in 2004, and legislators in Albany have so far not corrected it.

Mr. Cuomo is expected to approve the bill, but he said the proposed amendment had a "constitutional defect."

It is unfortunate that the majority opinion rests solely on the procedural problem, never reaching the more profound constitutional defect.

But the clear and forceful parsing of the statute's myriad constitutional defects by the judge, Phyllis Hamilton, provides a worthy model for decisions to come.