Judicial kings not the right philosophy for democracy
These days, it’s off to court to get a judge to preempt a decision produced by the political process.
The left and the right seem to want to be governed by Plato’s philosopher kings rather than a representative democracy. Only these days they are called federal judges.
This is the way our system of representative democracy is supposed to work: What our government can do is limited by constitutional constraints. The job of the judiciary is to enforce those limits.
But within those limits, the political branches – the legislative and executive – are supposed to make the decisions.
In a democracy, there are no permanent losers. If the machinations of the political branches yield a result that dissatisfies, the reaction is supposed to be to try to win a
reversal through the political process. Lobby to change the result. Organize to elect new policymakers who will decide differently.
Instead, these days, it’s off to court to get a judge to preempt the decision produced through the political process.
Virtually every public policy decision these days gets litigated. Donald Trump was elected, in significant part, on a platform of getting tougher on immigration. The courts have enjoined every initiative he has made, even in cases in which he was acting with explicit statutory authority. Federal judges have either ignored the law or said that the Trump administration hadn’t gone about making the policy change correctly.
Some federal judges have held that what President Barack Obama could do by executive action Trump cannot undo by executive action. And that authority other presidents could exercise Trump cannot because of things he said while campaigning that the judges find reprehensible.
But liberals aren’t alone in attempting to achieve through the courts what they have failed to achieve through the political process.
Republicans famously failed to repeal Obamacare in Congress. But now the Trump administration and several Republican state attorneys general, including Arizona’s Mark Brnovich, are suing to get it thrown out by federal judges.
When Obamacare was first enacted, there was a legitimate question about whether it violated the constitutional limits judges are supposed to enforce. It mandated that people purchase health insurance with an escalating fine for failing to do so. There was a legitimate constitutional question as to whether Congress could require a free people to purchase a particularly thing.
Chief Justice John Roberts ducked the question by dubbing the fine a tax rather than a penalty. Regardless, when Republicans took over Congress, they reduced the penalty to zero, effectively repealing the mandate. No mandate, no constitutional issue.
So, Obamacare now stands as congressional Republicans chose to leave it, in place but without a requirement to purchase a policy. Nevertheless, Republicans are asking judges to toss out the whole thing, even though there are not the votes for that in Congress.
This litigating rather than fighting for a reversal through the political process achieved reductio ad absurdum with a recent lawsuit filed over nutritional standards for school lunches.
The Obama administration imposed stricter nutritional standards for federally subsidized school lunches. The Trump administration eased them a bit.
Now, Democratic state attorneys general in six states have filed a lawsuit asking a judge to overturn the Trump administration’s revised nutritional standards.
The federal standards, however, are a minimum. There’s nothing preventing these six states, if they find the standards insufficiency healthy, from adopting stricter ones, including the very Obama standards they are asking a judge to reimpose.
So, they aren’t really suing on behalf of the children in their state. They are suing to force the higher standards on other states, which might be quite content with the looser Trump requirements.
Unfortunately, the lower federal courts are populated with judges who are quite willing to play philosopher king. And the laws are amorphous enough that they can always find some basis for doing so.
Only the U.S. Supreme Court seems willing to say: Get this nonsense out of our court. Take it to Congress or the ballot box. And the Supremes only get involved in a tiny fraction of cases.
So, to an extent never contemplated by the founders, we are being governed by judicial philosopher kings in what they intended to be the weakest of the three branches of government.