Within the next few weeks, the U.S. Supreme Court will hand down its ruling on the constitutionality of the Patient Protection and Affordable Care Act. Speculation about that case has dominated Supreme Court coverage since March 26, when the Court began an almost unprecedented three days of argument on the case. Given all the media attention surrounding the arguments, it would be easy to overlook the Supreme Court’s ruling in Zivotofsky v. Clinton, issued the same day. But that would be a mistake, because the ruling is a textbook example of the justices robustly fulfilling their role as guardians of the Constitution, something very much at issue in the challenge to the individual mandate.
The decision concerns Menachem Zivotofsky, a young man who was born in Jerusalem to American parents in 2002. As a child of American parents, Menachem is an American citizen. When his mother submitted Menachem’s application for a U.S. passport, she requested that his place of birth be listed as “Jerusalem, Israel.”
That’s when things hit a snag. Although Congress passed a law in 2005 that gives American citizens born in Jerusalem the right to list Israel as their country of birth on official documents, the U.S. State Department refuses to issue such documents, arguing that doing so would amount to taking a position on the contested territorial status of Jerusalem.
Menachem’s parents sued to enforce his rights under the 2005 law, but the case was dismissed under the “political question” doctrine. Under that doctrine, courts will not resolve legal disputes if doing so would unduly interfere with the decision-making power of the political branches of government. In Menachem’s case, Congress claimed to be exercising its exclusive power to regulate immigration, while the executive branch claimed to be exercising its exclusive power to regulate foreign affairs. As the lower courts saw it, federal courts should stay out of this fight, regardless of whether Congress or the President might have exceeded the constitutional limits on their power.
The Supreme Court, however, disagreed. On Monday it issued a ruling concluding that federal courts have the power and, indeed, the duty to police the constitutional line between congressional power and executive power. Because the lower court had failed to fulfill that duty, the Court remanded the case with instructions to resolve the dispute.
The Court’s decision reaffirms the central role that federal courts play in enforcing the limits on government power set forth in the Constitution, and it contains important lessons that apply far beyond the obscure “political question” doctrine. As Chief Justice Roberts noted in his majority opinion, “the Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’” Indeed, such review is especially important “where the question is whether Congress or the Executive is ‘aggrandizing its power at the expense of another branch.’”
When Congress or the President exceed the constitutional limits on their power, the judiciary must be willing to exercise its authority as a co-equal branch and ensure those limits are respected. As the Chief Justice noted, this “demands careful examination of the textual, structural, and historical evidence put forward by the parties” regarding the nature of the law and the constitutional provisions involved. In other words, it demands not judicial deference, but judicial engagement.
Unfortunately, while the Court seems willing to fulfill its duty in Menachem’s case, the Court has been far less willing to enforce constitutional limits when the legislative or executive branches aggrandize their power at the expense of individual rights. In areas like property rights and economic liberty, the Court has, for decades, shown an ever-increasing deference to the other branches of government. The result of this judicial abdication has been explosive growth in the size and scope of government power and a concomitant shrinking of individual liberty.
It need not be this way. If courts can exercise judicial engagement in conflicts between Congress and the President, then they should also do so in conflicts between the people and their government. Indeed, judicial engagement is all the more important when individual liberty is at stake. Without judicial engagement, the security of our most vital freedoms is left to the self-restraint of elected officials, which history has shown to be no restraint at all.
As the debate over the healthcare law rages on, many have argued that the Court should defer to Congress and the President. But Zivotofsky v. Clinton shows that courts have a more important role than simply rubberstamping the actions of the other branches. Even in highly politicized cases, courts have the ability—and indeed the duty—to police constitutional limits on government power. In the healthcare debate and beyond, respect for the Constitution demands that they do so.
Paul Sherman is an attorney at the Institute for Justice, which last year released “Government Unchecked: The False Problem of “Judicial Activism” and the Need for Judicial Engagement.”
Source: AFF Doublethink Online | Joseph Hammond
Source: AFF Doublethink Online | Emma Elliott Freire