Last week, Andrew Hansen of Brownsville, Texas dashed the hopes of millions of undocumented workers (can we just call them Americans already?) by temporarily blocking Obama’s executive orders that would shield them from deportation. To be fair, he’s not just any guy; Hansen is a qualified United States district judge, albeit one who has never faced election or been accountable to the public in any meaningful way. He is currently hearing a suit brought by a coalition of 26 states seeking to overturn Obama’s action on immigration, which would allow as many as five million people who pass background checks to apply for temporary work permits and pay taxes. Days before the Department of Homeland Security was set to begin implementation, Hansen ordered an injunction to block changes until the case is concluded.
The injunction itself is reasonable enough. It would be a grave injustice to set as many five million immigrants on a path to citizenship only to reverse course after a final decision from the courts. But, the whole fiasco is troubling as yet another instance of our federal institutions abdicating the responsibilities of governance to the judicial branch. Unable to leverage our representatives to do their jobs—that is, actually represent us by passing laws—we instead turn to the courts, begging unelected judges to provisionally govern using their interpretations of a short, centuries-old document. The courts have a valuable role as checks on legislative and executive power. But in our tradition of pursuing social change through private litigation, we have expanded the scope of government—and the authority of judges—immensely and to our peril.
The positive legacy of 1954’s Brown v. Board of Education, which formally ended a shameful period of racial segregation, has left with us with a rosy impression of this convoluted, often inequitable path to legislative change. As Francis Fukuyama has noted, there are essentially no other liberal democracies in the world that so consistently look to their courts to change the law.
In general, it goes something like this: A group of policy demanders (often ideological wing-nuts) backed up by sizeable war chests target a law they don’t like. After picking the proper district (it’s no coincidence the immigration challenge was filed with a white, Republican judge on the Rio Grande border in South Texas), they argue their case after which the losing side will frequently appeal. With any luck, the case ends up in the Supreme Court—which is to say, the Justices choose to hear it—where a circus of lawyers and expert witnesses try to convince a panel of politically appointed geriatrics to impose their particular vision as Constitutionally sacred.
This clumsy process is problematic in many ways. Legal scholar Robert Kagan dubs it “adversarial legalism” wherein conflicts are resolved through messy, time-consuming, and expensive legal battles rather than mediation through bureaucratic or legislative channels. On the whole, it is massively inefficient and can turn unaccountable judges into quasi-lawmakers. The result can be changes to the law brought about by small, wealthy interests that leave the public scratching their heads, or worse, enraged.
Consider Citizens United, McCutcheon, and the string of Roberts Court decisions that have significantly gutted campaign finance law. Such loose money policies would be unlikely to pass legislative muster, but for unelected legal scholars it’s no problem. Ditto for Hobby Lobby, which carved out a religious exemption to part of Obamacare for a Christian company only to unleash, quite predictably, a flood of other ludicrous challenges—including one from the Satanic Temple.
Despite the many failings of our legislative branch, Justice Samuel Alito’s vague, incoherent ruling wouldn’t have made it into the original law in any form, and for good reason.
Congress likes to complain whenever a president commits an overstep, real or imagined. But they guard their powers much less jealously from the courts, appearing more than happy to defer to them through inaction on tricky questions like immigration reform and gay marriage. While it’s tempting to cheer the courts for clearing the gridlock on these issues, we should be far less sanguine about unelected judges playing legislator and imposing dramatic changes to society through majoritarian written opinions.
As a country, we are taking the easy way out in hoping that from our circuitous legal system will emerge answers to the great questions we are either too cowardly or stubborn to resolve through discussion and compromise. Our system is designed for laws to originate from our representatives and be vetted by qualified judges, not imposed from the bench by judicial fiat.
In June, the High Court will decide through minute legalisms whether or not four words (“established by the State”) out of 11,588,500 in Obamacare should nullify insurance subsidies and effectively destroy the law.