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Trends in the Law: Courts as Lawmakers

This is a new installment in our Trends in the Law series.


In a recent interview with Fox News, President Trump made the following statement:

“We are changing laws as rapidly as we can get them through the courts.”

A simple yet stunning misstatement of the foundation of our constitutional democracy. Congress makes and changes laws; the Courts interpret them. The Founding Fathers carefully established three co-equal branches of government in order to allow each to serve as a check and balance on the other. This separation of powers is crucial to our democracy. Any attempt to elevate one branch over the other, or to take away power from one branch in favor of the other, upsets this critical balance and undermines the democratic system established in the Constitution. Bypassing Congress and heading straight to the Courts with controversial executive orders removes the legislative function from Congress—the branch of government to which it was given by Article I of the Constitution.

It hasn’t always been this way. Congress used to function as a fully equal branch of government. But from the 1970’s on, Congress began ceding its powers to the executive branch to enter into trade deals abroad, conduct diplomacy, and to send troops into war zones. Even with respect to appropriations, the hallmark function of Congress (the Constitution gives Congress the “power of the purse”), the legislature now waits for the President to submit his budget before preparing its own.


The irony is that the Constitution actually gives Congress more power than the other two branches of government. While the Executive branch can veto laws, Congress can override presidential vetoes. It can deny appointments to the executive and judicial branches. It can impeach office holders in those branches as well. Congress has the power to run domestic affairs; it did just that with a veto-proof majority in 1867-1869. The Courts can declare laws unconstitutional, but Congress—with the help of state legislatures—can amend the Constitution.

It is Congress that has the power to authorize war, ratify treaties, and impose sanctions after all. The sweeping powers of Congress were in keeping with the idea that as the only branch of government directly elected by the people, it was the branch of government that would most reflect the desires of the people. The Executive—the President and Vice-President—are elected through the Electoral College under Article 2 and Amendment 12 of the Constitution.

Thus, the fact that today the executive branch has been elevated above Congress is not because Congress lacks the power. It is because Congress lacks the will.


The other destabilizing consequence of Congress ceding its power to the Executive is the role that the Courts are playing: that of making laws rather than interpreting them. Again, President Trump’s statement is stunningly revealing: “We are changing laws as rapidly as we can get them through the courts.” The controversial laws restricting abortion that are being passed by various states are a perfect example of this strategy. One of President Trump’s campaign pledges was that he would appoint conservative Justices to the Supreme Court; he even produced a list of 25 such conservative jurists as potential nominees. Not long into his first term, President Trump had the opportunity to fulfill that campaign promise when Justice Antonin Scalia died suddenly. President Trump nominated Judge Neil Gorsuch, who was confirmed and is now on the Supreme Court. When Justice Kennedy retired, President Trump nominated another conservative judge from the list, Judge Brett Kavanaugh. Despite an extremely contentious hearing process, Kavanaugh was confirmed, and there is now a conservative majority on the High Court.

Seizing upon this opportunity—five conservative Justices on the Supreme Court—numerous states have passed laws restricting abortions to when a fetal heartbeat is first detected (the so-called heartbeat laws) or in the case of Alabama, banning the procedure outright except when the life of the mother is at risk. Knowing that these laws conflict with Roe v. Wade, the 1973 Supreme Court decision ruling that the U.S. Constitution provides a fundamental right to privacy that protects a woman’s right to choose whether to continue her pregnancy, the states are explicitly hoping that at least one of these laws will end up before the Supreme Court. The conservative state legislatures that passed these laws are hoping that the conservative majority on the Supreme Court will “change the law.”

In a recent case overturning a 40-year precedent regarding state immunity, Justice Breyer warned in his dissent that it is “dangerous to overrule a decision only because five members of a later court come to agree with earlier dissenters on a difficult legal question.” Justice Breyer repeatedly cited to the 1992 case which affirmed Roe v. Wade, Planned Parenthood v. Casey, and stated “Today’s decision can only cause one to wonder which cases the court will overrule next.”

Indeed, even if the Supreme Court does not take up one of the “heart beat” bills, what case will the High Court take up next? What precedent could it overrule? Many court-watchers and political pundits speculate that challenges to immigration policies will be at the heart of the next cases making their way to the Supreme Court. In fact, the addition of a citizenship question to the 2020 census was fast-tracked to the Supreme Court and argued in April; a decision is expected by June. (See our previous Trends in the Law blog: “The Citizenship Question.”) With the Trump Administration’s aggressive stance toward immigration reform, more lawsuits are certain to follow.

What laws will the Courts change? Stay tuned.


If you or someone you know you know believes your rights have been violated, contact Dave Thomas at The Thomas Law Firm for a free consultation.

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