After more than 60 years studying the United States Constitution, I have discovered that we are now governed by an unwritten document available only to a select group of six people. That group serves on the US Supreme Court. Occasionally, the Supreme Court has shocked the country with doctrines not found or implied in the Constitution. A shocking number of those decisions have occurred in this century.
In 2000, the Court took it on itself to decide a presidential election even though the Constitution placed that responsibility on Congress. Congress could have asserted itself, but it did not. The Court went on to find a private right to gun ownership not found or implied in the Constitution. In recent years, the Court has set a course to rearrange the powers of the president and the Congress with a distinct bias toward presidential powers. It has gone so far as to shield the president from legal responsibility for his actions. It seems that the Court is indifferent to the practical consequences of its decisions.
In passing, we should note that the Court itself has no enforcement powers; it depends on the trust of the people. Recent polls vary but they consistently show fewer than half of Americans have confidence in the Court with the average finding disapproval in the 40% range.
In the coming months, the Court will deal with president’s efforts to seize Congressional powers and thereby rearrange the Constitutional balance of powers. The Court has already moved to both enlarge the powers of the presidency and immunize the president from criminal law enforcement.
Faced with a president who seeks to exercise all the powers of government and more, the Court has created a new judicial path. Rather than decide cases in which lower courts have ruled that the president’s acts are unlawful, it has allowed the questionable actions of the president to continue until the case exhausts the judicial process. The effect of this seemingly minor procedural point is to allow rights to be infringed and liberties to be denied for extended periods of time. This, despite the very purpose of laws providing for the protection of rights and liberties through judicial intervention pending full judicial review.
Underlying this pattern of judicial activism is a legal theory called the “unitary executive.” The six-member majority subscribes to the belief that anything that requires executive action is under the exclusive control of the president regardless of laws Congress enacted pursuant to its powers. Carried to its logical limits (which the current president seeks to do) the role of the Congress is minimized. The framers of the Constitution would be shocked to learn that the checks on executive powers it labored to create could be so easily circumvented. In fact, the Court has created a new constitution with an all-powerful president who is immunized for life for illegal acts while in office. Sounds like a king to me.
Richard A. Hesse is Professor Emeritus at UNH Law.