Separation of Powers – SCOTUS and Judicial Review

As a general rule of thumb, I try to avoid political discussion. It is often heavily mired in team and identify-based thinking and I don’t really know how to work with that. Every once in a while, I find something more neutral and interesting, however, like this political cartoon by Michael Ramirez.

First off, I don’t intend to type out Supreme Court of the United States repeatedly, so we will adopt the oft-used SCOTUS. This characterization of the supreme court as trying to illegally usurp the power of the legislative branch is hardly a new one.

Within the Constitution, the SCOTUS in a very brief and vague way. As I understand it, there was not a precedent for them to draw on in defining the limits, but state sovereignty was an important subject at the time and they wished to establish a body who’s job it was to settle disputes across state lines as well as those issues related to the government.

 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Constitution. Article III, Section 2, Clause 1.

While history displays a certain amount of… power creep… within judicial review, I usually find the court’s opinion reasonable and well considered. A recently delivered opinion that has received a lot of attention is the review of cancellation of the Deferred Action for Childhood Arrivals put in place during the Obama administration. Some people refer to it as or associate it with the DREAM act, though they appear to be similar but distinct, the latter being a legislative action that never passed.

During his time in office, Obama did attempt to expand DACA’s coverage, but was ultimately prevented from doing so. There were already a number of cases challenging DACA as an over-extension of executive power.

Then, when President Trump took office, he publicly stated that he was going to stop this program and issued and internal memo to that effect. This is arguably within his power to do, but was challenged as being “arbitrary and capricious” as defined by the Administrative Procedure Act.

The SCOTUS recently agreed with that assessment based on the reasons provided by the head of the department at the time it was originally challenged. Several of the SCOTUS judges filed a partial dissent which appears to suggest that if it was wrong from Trump to do it, it was wrong for Obama to do it, and the program should be found unconstitutional and terminated, but that the majority opinion was unwilling to make the correct legal decision for political reasons. Personal ethics aside, that’s a fair argument.

Regardless, the SCOTUS serves a very important purpose, it acts as a check against both the executive and legislative branch. In recent history, it typically errs on the side of protecting and preserving individual rights and choices from executive action and a scant legislative majority.

Taken as a whole it looks like the system is functioning as intended. Slowly, as intended. Executive action is… complicated. As much as it pains me to admit this, if we cannot muster enough collective agreement to pass a proper legislative solution, then perhaps this program does not represent the “will of the people.” If we, as a nation, cannot engage in civil cooperative discussion long enough to find a compromise, then we deserve to suffer the consequences. Instead of laying the blame on any one party or branch of the government, we should be asking “am I helping move the dialogue forward or simply stonewalling?”

Okay, I’m sick of writing about this. Y’all take care. Hopefully games and screenshots tomorrow and not… whatever this is.

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