This article first appeared on The Epoch Times
In the spirit of more Obamacare litigation at the Supreme Court and the weekend right around the corner, I thought it would be fun to explore a few principles that have become entrenched in the American judicial system. Many have orated and written in the past – and lately concerning the case challenging the Affordable Care Act at the Supreme Court – that the courts do not write laws, they interpret them. While accurate, this statement is a bit of a misnomer in two distinct ways.
First, through judicial precedents, there is a body of what is called case law or judge made law in which court decisions upholding or striking down certain actions by governments have become the legal baseline and thus the law of the land (more on this below). Precedent (at the federal level) is established by the circuit courts and the Supreme Court, not district courts. Precedents bind future courts and future decisions and judges are very wary to overturn precedents – especially some that might be controversial such as same-sex marriage.
In some instances, judges do re-write laws in parochial terms. Some recent context for this came from Supreme Court Justice Samuel Alito in the oral arguments in King v. Burwell, the most recent challenge to the ACA, in which he stated that if the Court struck down the IRS interpretation of subsidies to millions of citizens whose states did not establish health care exchanges, the Court could delay their ruling as to allow for a transitional period.
Second, through precedents beginning in the first few years of the nation and forward, the Supreme Court established precedents that have created various principles and rules abided by everyone. Though, such principles are not necessarily written into the text of the Constitution’s Article III (only 375 words) that established the Judicial Branch. As explored below, some legal scholars believe that the Judicial Branch established certain principles extra-Constitutionally.
The Judicial Branch is the branch of government farthest removed from the people, and thus the least understood. However, as a co-equal branch of the American government system, it has an important role in the lives of Americans especially in the current case regarding the ACA. The Court could potentially eliminate health care subsidies for some 8 million people based on what the text of the statute says and relevant interpretations. Here are some examples throughout history in which the Judicial Branch has established institutional norms through their own interpretations not necessarily explicitly in the Constitution. Just imagine what the American governing system would look like without these alterations:
Judicial review is one of, if not the most authoritative tenets of the Supreme Court’s responsibility and impact on government. The precedent of judicial review was established in 1803 in the Court’s decision of Marbury v. Madison. The case focused on the appointment of William Marbury as a Justice of the Peace in the District of Columbia by outgoing President John Adams. However, once President Thomas Jefferson took office, he directed his Secretary of State (which at that time held domestic duties including preparation of commissions of executive appointments) James Madison to not recognize Marbury’s appointment (as a quick aside, for those frustrated with the political polarization of the nation today, the country was extremely polarized then, potentially more so than today). Mr. Marbury sued Secretary Madison for denying him the appointment, asking Madison to cite causation for denying the appointment.
The key questions the Court examined were if Marbury was in fact entitled to his appointment; if suing Madison was the proper means to ensure his appointment; and if the Supreme Court was the necessary institution in which to decide the matter. Writing for the Court in a 4-2 decision (the Constitution does not explicitly state how many justices sit on the bench as at this time there were only six) Chief Justice John Marshall determined that Marbury was appointed by the proper means, he could entitled to some form of legal remedy, and most consequentially, the court system has a duty to protect citizens from actions of the government that run in contrast to the Constitution, the highest legal authority in the nation.
The notion that the courts can, and do currently, review acts of the government that are challenged and examine their constitutionality was hotly contested at the time and thought to be an overstepping of authority. As is current practice, the court system hears arguments and rules on the merits of constitutional challenges all the time, though not explicitly written into the Constitution. As the third branch of government and the arbiter of the Constitution, it serves as an equal check against the other two branches.
Cases and Controversies
Among various limits placed upon the Judicial Branch (to its credit, many times self-inflicted) are the cases and controversies limitations in the Constitution. This provision established the three prong test one must meet to in order to gain “standing to sue.” In order to file a suit, one must demonstrate they have an injury in fact, meaning they have to demonstrate they are either physically, financially, emotionally, etc. hurt; one must identify the party responsible for their injury; and there must be a remedy. If one cannot demonstrate all three, the suit is thrown out.
Harkening back to the previous section in terms of separation of powers and co-equal branches, the Court early on established that they will not deliver “advisory opinions.” In 1793, President Washington sought the advice and counsel of the Supreme Court regarding how to remain neutral in a conflict between France and Britain. The Court determined that the Constitution only permits the courts to interpret law in the presence of a “real case or controversy.” It would not offer its advice on the legality of premature policies. This was floated extemporaneously by some commentators within the context of recent executive action by President Obama - under the guise of trying to avoid inevitable political battles with Republicans, he could gain permission from the Supreme Court beforehand to cover his bases.
In an interesting preview of a forthcoming legal paper, University of San Diego law professor Mike Rappaport describes a notion put forth by James Pfander, law professor at Northwestern University, in which the current Supreme Court has misinterpreted the standing doctrine from its original intention. According a summary of the paper by Rappaport (an "originalist" meaning one who interprets the Constitution under its original meaning), the paper highlighted an instance in which an individual sought citizenship through the courts, which runs contrary to the modern standing doctrine because at the time, there was no injury in fact, and no adversary challenging. Rappaport also noted that Chief Justice Marshall and Justice Story understood cases and controversies to mean different things than they do today. Rappaport continued, “In the end, though, Pfander’s analysis provides significant evidence that our standing rules are too strict.” It is important to note, these are just the opinions of a couple of legal scholars.
In one of the most consequential decisions of the 20th Century with long lasting implications for expanded executive authority, the Supreme Court in the 1983 case of Chevron v. National Resources Defense Council established what is referred to as the Chevron Doctrine. The respondents challenged the way in which the Environmental Protection Agency interpreted amendments to the Clean Air Act and promulgated rules to the states instructing existing plants with pollution-emitting devices that they may “install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant, thus allowing a State to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single ‘bubble.’” The respondents disagreed with the “bubble" concept of the agency interpretation of the statute.
The Court ruled in favor of the agency establishing the Chevron Doctrine or sometimes referred to as Chevron deference, in which the courts will defer to agency interpretations when statutes are ambiguous because judges are not experts – in the case of Chevron, the judges are not experts in environmental science, the agency is.
This decision has wide ranging implications in which ambiguous language passed by Congress can be interpreted and implemented by the agency – in effect meaning that agency promulgations can change from administration to administration depending on the political leanings and interpretations of presidents.
The Chevron Doctrine has been cited in several administrative law cases from air pollution to immigration. In the context of the current challenge to the Affordable Care Act, the judges at the appellate level who ruled in favor of President Obama’s signature legislative achievement determined that in fact the seemingly straight-forward phrase exchange “established by the State” is ambiguous and deserves deference from the agency, in this case the IRS. Judge Harry Edwards for the DC Circuit, who wrote a dissenting opinion in Halbig v. Burwell – a case that ruled against the ACA's subsides and was coincidentally handed down the same day as King v. Burwell in the 4th Circuit - that the provision in question deserves deference under Chevron because “The IRS’s rule defines ‘Exchange’ by reference to the [Health and Human Services]’s definition, which provides that subsidies are available to low-income taxpayers purchasing insurance on an Exchange ‘regardless of whether the Exchange is established and operated by a State.” Judge Roger Gregory, who wrote for the majority of the 4th Circuit in King quoted the Supreme Court’s decision in Chevron regarding ambiguity; “A statute is ambiguous only if the disputed language is ‘reasonably susceptible of different interpretations.’”
Jeffrey Toobin writing for the New Yorker, contended that Chief Justice John Roberts might vote to uphold the ACA’s subsidies as to afford more power to presidential administrations in the future to re-interpret the statute, thus virtually leaving the fate of the law up to the voter - a Democratic president would be more inclined to keep the subsidies and a Republican president would be inclined to eliminate them - in the name of the traditional parochial political nature of the Judicial Branch. “’If you’re right about Chevron,’ Roberts said, at long last, ‘that would indicate that a subsequent Administration could change that interpretation?’ Perhaps it could, Verrilli conceded,” wrote Toobin regarding an exchange between the Chief Justice and the Solicitor General at King’s Supreme Court oral arguments. However, the opponents of the law disagree with this view of deference as they believe the law should be implemented exactly how it was written.
Now consider a world in which these doctrines and principles did not exist. These are just a few brief examples of “judge made law” and procedures that have impacted so many throughout history, though not without controversy. Consider the notion brought forth by Georgia State University law professor Eric Segall that the courts, through some forms of judicial review, have amended the Constitution extra-Constitutionally.
“In this system, the Court does not improperly contravene Article V [provision pertaining to the constitutional amendment process] when it changes its interpretations of vague constitutional words and phrases such as ‘due process,’ ‘equal protection,’ ‘unreasonable searches and seizures,’ ‘speech,’ ‘establishment,’ and ‘free exercise.' The shifts back and forth in these areas of law may simply reflect reasonable disagreements over ambiguous text and contested history and amount to nothing more than the Court doing the best it can to interpret our foundational document. Although the meaning and application of the Constitution to hard cases changes regularly because the changing Justices cause shifts in judicial doctrine, the current system anticipates these changes without the need to formally adhere to Article V.”Segall further contends “When the Court ignores or distorts clear and unambiguous constitutional text, however, absent such an interpretation leading to an absurd result, the Court is, in effect, amending the Constitution without utilizing Article V procedures. For example, the Constitution requires that the President be thirty-five years old, and if the Court were to sanction a thirty-three-year-old President, then it would effectively and improperly amend the Constitution. Our system of judicial review assumes that judges will take text at least partly seriously; otherwise the Constitution would have little binding force.”
While Segall's views are not shared by all, they raise important intellectual points about the evolution and normality of the American governmental system. It is hard to imagine things differently, but through one small act, the course of history could have been changed. These are just thoughts to ponder over the weekend.