I want to discuss a passage in James Joyner’s recent post:
I’ve only recently come to adopt the view that the courts, and certainly the Supreme Court, have to consider the policy implications of their rulings, not merely whether the question before them is technically legal.
Yes, the elected branches—Congress and the President—should make public policy and be granted wide latitude in doing so. In theory, if increasingly less in practice, the people can toss them out in the next election if they dislike the policy. But a justice system is supposed to ensure justice, not merely legality. Sending people who have done nothing wrong to die in countries they don’t know is not justice.
I think that answer deserves some reflection.
As I understand it our three branches of government are designed to operate as follows:
- The legislative branch enacts laws, governing appropriations and other policies.
- The chief executive executes the law and proposes policies.
- The judicial branch interprets and applies the Constitution and the laws enacted by Congress, resolving disputes according to the law rather than according to its own policy preferences.
If the judicial branch determines the appropriate policies on its own, doesn’t that necessarily diminish the policy-making role assigned to Congress? If judges are to substitute their preferred policies whenever they believe justice requires it, what meaningful policy discretion remains for the legislative branch?
Furthermore, if judges are expected to reach the “correct” policy outcomes, by what standard are they to be evaluated? Lifetime tenure makes sense for judges whose duty is fidelity to law. It is much harder to justify if judges are expected to function as policymakers insulated from electoral accountability. That has not been the case historically. It would be a significant departure from our original structure as designed.
I agree with James that our current system is producing troubling results. Where we differ is in the diagnosis. My concern is that asking the judiciary to remedy policy failures created by the political branches ultimately erodes the constitutional division of responsibilities rather than repairing it. I think that members of Congress, the executive, and the judiciary are all acting in the directions in which their incentives, as they’ve evolved over the last 60 years, motivate them. I’ll have more on that in a later post.
The temptation to ask courts to correct failures by Congress and the executive is understandable. My concern is that every time one branch assumes the responsibilities of another, it changes the incentives under which all three branches operate.
I dont know that James is asking for SCOTUS to broadly insert itself into policy. In context, SCOTUS in its recent ruling decided to accept the word of the executive branch that it had assessed the safety of Haiti and Syria while the available evidence suggested they had not. The law is just vague enough that it could be interpreted, apparently, as meaning that no one had the right or legal position to question that executive branch decision. The end result is as James noted.
I suspect what James would be happy with is if in decisions like this the court would rather choose the option, which would also be well within the interpretation of the law, and probably what was meant when it was written, that a good faith effort be made to determine that returning was safe. That the courts should not overlook the consequences of their decisions, especially when they are looking at multiple plausible interpretations and one of them is complete deference to the executive branch which is acting in bad faith.
Steve
Why not just adopt the EU system of a yammerhead parliament and real power held by appointed bureaucrats. Or, instead take up the hard work of electing a majority of both houses and repealing the filibuster rule. An alternative would be sitting down and quietly working out compromises preferably in a room without ac and clogged toilets.
Section 244(b)(5)(A) of the Immigration & Naturalization Act precludes judicial review of TPS determinations:
“(A) Designations
There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
Note that it’s not just terminations that cannot be reviewed, but designations and extensions. If this passage means nothing, then every designation and extension must likewise be given the full benefit of judicial review and appeals, and by and large to similar outcomes, mere delay. Or would Joyner’s philosopher kings selectively ignore laws only in an enlightened manner?
Congress has the power to strip the courts of jurisdiction, and has done this in many places in the INA and the district courts have been ignoring it. For example, review of removal decisions is limited to appeals to the Courts of Appeal _after_ a final removal decision has been made. Still district courts have entered orders enjoining the process from going forward to a determination. There is also a category of “expedited removal” of certain categories of aliens that is not reviewable, except by habeas petition solely to determine whether they have a lawful status such as citizenship or lawful permanent resident. The D.C. Circuit recently rejected such a review by a district court, which might end it.
Those suing the government made the argument that the process of a determination is reviewable by the courts, but not the determination itself.
It’s not a convincing argument, and a failure to identity a clear rule to distinguish the two by the plaintiffs is a sign of the weakness of the argument.
The oxymoron with judges making rulings based on outcome considerations and not on what the laws meaning is it weakens respect for the law and legal prcoesses (which is basis of judicial power).