Lost in the rancor of what increasingly only passes for a functioning republic, Supreme Court Justice Neil Gorsuch has not only sounded alarm about our state of the union but offered hope for a way back to what the Framers intended. And while his court opinion specifically addresses justice and liberty for a singularly frowned-upon bunch of Americans — past sex offenders — his words nonetheless serve constitutional notice on Democrats as well as members of his own party, including the president who appointed him and the senators who confirmed him in 2017.
Justice Gorsuch’s warning: The liberty of all is imperiled if Congress doesn’t begin reclaiming some of the difficult responsibilities and tough decision-making the Framers assigned it and that both chambers on Capitol Hill have gradually ceded to all the president’s men. It’s worthy as we commemorate our founding and, presumably, our liberties. The heady challenges facing so many different lawmakers representing so many different people, plus the admittedly tedious, prolonged business of forging laws, should not permit legislators to surrender their constitutional powers to others, including chief executives who naturally will seek more and more power in the bargain.
“No one, not even Congress, had the right to alter that arrangement,” Justice Gorsuch declares in his June 20 opinion, conjuring mighty voices from America’s past. “As Chief Justice [John] Marshall explained, Congress may not ‘delegate ... powers which are strictly and exclusively legislative.’ Or as John Locke, one of the thinkers who most influenced the Framers’ understanding of the separation of powers, described it: ‘The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.’ ”
Gorsuch’s court opinion is timely. Constitutional purists must have been stunned when, over two recent nights of debates by Democratic presidential candidates, one after another promised to sign executive orders on everything from gun control to the Paris climate accord to asylum protocols. Sen. Kamala Harris vowed to sign an order re-establishing the Deferred Action for Childhood Arrivals. When President Obama ordered this in 2012, Republicans in McLennan County loudly claimed this rendered him a lawless tyrant whose subversion of the legislative branch justified impeachment, at least judging from congressional town-hall rhetoric (back when we still had in-person town-hall meetings).
Republicans have little cause to ever again brand Democrats and Obama lawless. Amid executive orders signed by a president of their own political party on everything from the environment to immigration, this constitutional chorus of the outraged has gone mute. This year President Trump seized a full-blown humanitarian crisis on our southern border to declare a national emergency to shift money allocated for specific purposes by Congress to instead fund a border wall. Republican lawmakers who prided themselves as strict constructionists swallowed their Article I principles and backed this subversion of Congress’ constitutional power of the purse.
“I think it’s fair to say there’s pretty great agreement in this room that there has been an erosion of congressional power,” veteran attorney Stuart Gerson, a longtime supporter of conservative causes (and conservative jurists), testified Feb. 28 before a House committee of Republicans and Democrats concerning the legitimacy of Trump’s hijacking of congressional prerogatives under a national declaration. “Too often Congress acts like a parliament. That’s not what it was set up to do. Indeed, it was set up to be something else because there was a parliament that allowed a king to act in an arbitrary way. That’s why we fought and won a revolution.”
During this hearing, George Washington University law professor Jonathan Turley warned that concerned lawmakers shouldn’t expect federal courts to reverse decades of Congress’ forfeiting Article I powers to the executive, including an ill-defined National Emergencies Act of 1976 which now allows presidents to declare emergencies on matters so dubious or insignificant most Americans are unaware of them. Examples: importation of rough diamonds from Sierra Leone or transfers of property by Haitian and Zimbabwean officials. Presidents have declared national emergencies 58 times since 1979; 31 remain in effect.
No less than Republican Congressman Louie Gohmert, of Texas, one of the most conservative members of the U.S. House of Representatives, acknowledged the broader problem of crumbling congressional power, even as he sided with Trump in declaring a national emergency on the border: “It reminded me of a comment by my friend, [late] Justice [Antonin] Scalia. When I asked him something about this [surrendering legislative power to the executive branch], he said: ‘Look, if you guys in Congress are not willing to do your job, don’t come running over to our court wanting us to do it for you!’”
If Gorsuch’s words offer any encouraging note for Americans this Fourth of July season, it may be in his signalling that, yes, federal courts must step forward and reset constitutional boundaries, Turley’s prediction notwithstanding. Gorsuch’s opinion refers specifically to an imbroglio in which Congress in 2006 passed the Sex Offender Registration & Notification Act, complete with detailed instructions for state and federal sex offender registries. However, for the half-million convicted of sex crimes before 2006, Congress couldn’t agree what restrictions should apply. So it simply dumped the mess on the attorney general in the executive branch.
“Congress thus gave the attorney general free rein to write the rules for virtually the entire existing sex offender population in this country — a situation that promised to persist for years or decades until pre-act offenders passed away or fulfilled the terms of their registration obligations and post-act offenders came to predominate,” Gorsuch writes. To complicate matters, different attorneys general in different administrations have exercised discretion in different ways, leaving the liberty of these citizens ever fluid.
Now, Gorsuch asks, imagine this scenario applied to American citizens as a whole.
Gorsuch highlights (with a handy assist from conservative law professor Neomi Rao, who now occupies Justice Brett Kavanaugh’s old federal appeals court seat) what happens when such careless or sloppy legislating becomes the norm: “Legislators might seek to take credit for addressing a pressing social problem by sending it to the executive for resolution while at the same time blaming the executive for the problems that attend whatever measures he chooses to pursue. In turn, the executive might point to Congress as the source of the problem. These opportunities for finger-pointing might prove temptingly advantageous for the politicians involved, but they would also threaten to ‘disguise ... responsibility for ... the decisions.’ ”
Major stumbling block: lawmakers who rally strongly against executive overreach but only when the White House is occupied by someone from the opposing party. Republican Congressman Bill Flores, who represents Central Texas, eloquently championed Article I powers throughout the embattled Democratic presidency of Barack Obama and even in the lead-up to the Trump inauguration (during which alt-right forces viciously blasted him for seeming to defy Trump, a Republican). Yet the congressman’s more recent statements involving a Republican White House guilty of the same sins reveal few such protestations or concerns.
Contacted last week, the congressman declined over several days to discuss such matters beyond a press statement that he “continues to support and defend the authority of Congress under Article I of the Constitution.” Given his unwillingness to answer, one must speculate: The congressman’s beliefs quite possibly haven’t changed but political realities during the Twitter-happy Trump era have. During a Jan. 7 Trib interview (in which Flores reiterated that Obama’s DACA executive order was overreach), the congressman voiced skepticism about Trump’s declaring a national emergency to secure border wall funding: “It doesn’t look to me like it would work.” By mid-February, he expressed no such skepticism, stating Trump “has the legal and constitutional authority to issue a national emergency declaration.” Left unaddressed in an admittedly deteriorating and complicated border situation: the president’s overriding and defying specific congressional dictates on funding for any wall construction — a clash which, besides conjuring such past American embarrassments as the tragic 1939 voyage of the MS St. Louis and its caravan of more than 900 desperate Jews, raises the legitimate question of how a border wall addresses what everyone by now agrees is a humanitarian crisis involving obviously desperate refugees fleeing violence and oppression in Central America. When pressed about his apparent shift in stance last February, the congressman’s office noted how often President Obama had declared national emergencies.
Meanwhile, Flores’ party looks the other way or worse. Tuesday Republican Congressman Chip Roy, also of Texas, urged the president to ignore a June 27 Supreme Court ruling and place a controversial citizenship question on the national census. By week’s end, the president raised the spectre of executive action, which would seem to defy Chief Justice John Roberts’ words: “The taking of the census is not one of those areas traditionally committed to agency discretion.” Also last week, Theresa Pierno, president of the National Parks Conservation Association, branded illegal Trump’s reallocating $2.5 million from the national parks budget to help fund a partisan campaign event masquerading as a nonpartisan Independence Day celebration on the National Mall, complete with VIP tickets for Republican donors and political appointees. This money reportedly came from park visitor fees, a source for park service and maintenance projects vital amid possible cuts in park funding. To quote Pierno: “Every American should be worried that parks are being called upon to make sacrifices for a short-term purpose — especially one that’s little more than a public stunt.”
And when federal border officials last week sought to press a congressional delegation to surrender cellphones before touring immigration detention facilities in Texas, Democratic Congressman Joaquin Castro, also of Texas, refused and subsequently documented horrific conditions suffered by detained women and children: “We very specifically asked both the border patrol sector chief and an attorney who was there what law allows the executive branch to prevent members of the legislative branch, who have oversight authority, from documenting what is going on at a government facility. They clearly could not provide any kind of law to back up their request that we not take a phone or anything to document what’s going on. So at that point I considered it a courtesy request — and the stakes are much too high to abide by any courtesy.” (State Rep. Lina Ortega of El Paso offered a twist on why her effort to tour a federal detainee facility with county officials was refused: “One of the agents there, and he was very honest, said they weren’t going to allow us to go because we don’t fund them. The only reason we as state representatives were able to go was because of the Congressional Hispanic Caucus.”)
And all that’s just last week. Each such incident, large or small, chisels away at James Madison’s constitutional checks and balances as outlined in the Federalist Papers. And, as Madison added, “In republican government, the legislative authority necessarily predominates.” Those who might cite similar transgressions by President Obama simply prove the point: Abuse of constitutional power continues, possibly worsens, under President Trump. And as no less than Trump Supreme Court appointee Brett Kavanaugh ruled in another case, the Constitution’s Appropriations Clause serves as “a bulwark of the Constitution’s separation of powers among the three branches of the national government. It is particularly important as a restraint on executive branch officers: If not for the Appropriations Clause, the executive would possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure.”
Rich Lowry, editor of 64-year-old National Review magazine, one of the last media refuges for authentic conservatism, said during an April 22 event at the National Constitution Center that the ends do not justify the means when undermining Madison’s cherished separation of powers, even when border-wall funding is the prize (and Lowry supports border fencing): “Bottom line is: It is wrong for a president of the United States to legislate unilaterally or appropriate money unilaterally. It was wrong when Obama did it, it’s wrong when Trump does it and it’ll be wrong when and if Kamala Harris or Mayor Pete does it. Period. Full stop. End of story.”
So says Justice Gorsuch in more courtly words. And while his opinion is in dissent (joined by Chief Justice Roberts and Justice Clarence Thomas against a liberal majority; Kavanaugh had not yet been confirmed to hear oral arguments in the case), Gorsuch suggests conservatism on the high court may seek to right the serious wrongs lawmakers and presidents, liberal and conservative, have done to constitutional order — especially as lawmakers lack the courage or resolve to build consensus among peers.
After listing ways the high court has sought to preserve constitutional order in the past, Gorsuch adds this warning: “These cases show that, when the separation of powers is at stake, we don’t just throw up our hands. In all these areas, we recognize that abdication is ‘not part of the constitutional design.’ And abdication here would be no more appropriate. To leave this aspect of the constitutional structure alone undefended would serve only to accelerate the flight of power from the legislative to the executive branch, turning the latter into a vortex of authority that was constitutionally reserved for the people’s representatives in order to protect their liberties.”
Three key questions remain amid fast-fleeting Fourth of July reflections: Can federal judges, piece by piece, consistently restore constitutional order without themselves falling into the partisan tar pit that so thoroughly ensnares lawmakers? Can future lawmakers rise above the din and corruption of partisan mobs and high-dollar donors who demand no compromise, no quarter, as conditions for election and backing? And does the public even realize failure in these fundamental matters paves the way for totalitarian power? The latter would prove a tragic turn of vision for the Founders who so admired the Roman republic and sought to improve upon the model to prevent the very tyranny that so infected and destroyed it. And for those who cavalierly dismiss such a development in America as utterly impossible, a final question: How can a nation that loudly champions decency and family values celebrate its founding with such abandon while ignoring what many once also thought an impossibility in contemporary America: the deplorable conditions at refugee detainee camps in Texas under the custody of U.S. border officials, many of them quite obviously brimming with contempt and hatred for these tired, poor, huddled masses yearning to breathe free?