Never before has the Supreme Court’s disregard for precedent, reason, the Constitution, and public sentiment been so complete that the court changes whole swaths of Constitutional Law too fast for law schools to keep up.
It’s no one substantive area, but affects the Presidency, how modern government functions, individual rights, and other issues. Tossed aside are not only substantive decisions but time-honored ways of deciding cases.
Mr. Trump’s “immunity” is only the hottest news.
When judges interpret laws, they consider what the lawmakers knew when they enacted them. If city council outlawed visitor parking in Lots 1, 3, and 4, but didn’t mention Lot 2, that factor strongly suggests that they intended not to outlaw visitors parking in Lot 2. They knew Lot 2 existed, and – barring compelling evidence to the contrary – meant that omission.
Our Founders were writing a Constitution we could follow. They gave the Presidency Article II. They knew the concept that the ruler is above the law and cannot be sued or prosecuted for crimes. “Sovereign immunity” had been the law forever, everywhere. They could have declared a president above the law, during or after his time in office, but they strongly feared that a ruler could try to become a king. Alexander Hamilton reassured voters that the President’s great powers were limited by “his being liable to impeachment, trial, dismissal from office, . . . and to forfeiture of life and estate by subsequent prosecution in the common course of law.”
Fighting impeachment, Trump’s minions argued that impeachment was unnecessary because the criminal courts would handle Trump’s conduct. He was subject to our laws and courts, like anyone. Now, suddenly, he isn’t. (How we’d all howl, had a court invented that to bar punishing Joe Biden for taking a Chinese bribe to weaken us to enrich Hunter Biden.) President Trump could have VP Pence shot – with impunity.
Meanwhile, as governments grow, and everything gets more complex, it’s tough to balance Congress’s right and duty to make our laws with Congress lacking the time and expertise to write a 10,000 page law providing for every way that poisonous industrial by-products could harm us and every possible way officials can react to each. After enactment, a statute develops through court decisions, legislative tinkering, and administrative rules, as experience, new ideas, new technologies, and jury verdicts teach us more.
You don’t want Congress writing “Anyone who puts poison into the air or water gets 50 lashes.” But you can’t expect congress to write a law that enumerates every possible poison, assesses how dangerous each is in what concentrations, and list every possible corrective action government might take.
Legitimate problem. Increasingly so as decades pass. The Court developed “the Chevron exception.” Basically if Congress implicitly delegated aspects to a regulatory agency, courts give substantial deference to the agency’s expertise, so long as the regulation is reasonable.
Polluters, oil companies, food purveyors, and others hated that. If they could require that Congress had to specify every detail in the law, then every time they had a new poisonous wrinkle, they’d skate free pending a new law from Congress. Eliminating “Chevron,” the Court just gave bad actors a huge “Get out of Jail Free” card.
Justices also blew off significant personal rights, cracked the wall between church and state, and anointed the NRA Emperor.
Law schools had better give ConLaw classes only in the 3rd year, so’s the teaching’s are accurate.
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[The above column appeared Sunday, 21 July, 2024, in the Las Cruces Sun-News and on the newspaper's website and on KRWG’s website, under Local Viewpoints. A shortened and sharpened radio commentary version will air during the week on KRWG (90.1 FM) and on KTAL-LP (101.5 FM, streaming at www.lccommunityradio.org/). For further information on the topic of this column, please go to my blog, https://soledadcanyon.blogspot.com/ .]
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