Separation of Powers is Dead

This has been an important week in the Supreme Court. The two cases that have been concerning to those who care about the separation of powers as outlined in the US Constitution are Bostock v. Clayton County and DHS v. Regents of the University of California. In both cases, one party sought to rewrite the law without Congress. In both cases, the re-writing party prevailed. In Bostock, Justice Alito began his dissent by remarking that “There is only one word for what the Court has done today: legislation.” Justice Thomas writes in his dissent of DHS, that “DACA is substantively unlawful” but nonetheless, “the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”

There has been much celebration of both cases, and for quite understandable reasons. DACA recipients have feared potential deportation and are safe-for now. LGBT individuals were unprotected by federal law and could legally be fired for their sexual orientation or gender identity, but now they, too, are safe. It is no wonder to any observer why these groups and their advocates are celebrating. The question is: at what cost?

Who Makes the Law?

There are strong policy arguments for both issues, but none of those arguments matter when it comes to the courts interpreting the law as it presently exists. In his opinion on DACA, Chief Justice Roberts reminds us that “a court is not to substitute its judgment for that of the agency.” He then writes “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may.” The question is whether the Department of Homeland Security gave good enough reasons. He concludes that the reason that DACA was illegal was not a good enough reason. By reaching this conclusion, the court sets a dangerous precedent: an executive can violate the law, overstep his authority, and then force all successors to follow in his footsteps. Justice Thomas ends his conclusion by explaining this danger:

Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.

Justice Alito argues that “the question in [Bostock] is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964” and concludes that “It indisputably did not.” The court is not supposed to be the place where policy is made, but rather the place where present law is upheld. Clear interpretation of the 1964 Civil Rights Act does not include sexual orientation and gender identity, Justice Kavanaugh likewise concludes. “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”

Kavanaugh points out how all 3 branches of government recognized that the 1964 Civil Rights Act did not include sexual orientation or gender identity. First, there have been many legislative attempts to change this in Congress. Just this past year the House passed The Equality Act which would have made gender identity and sexual orientation protected classes under federal law. It failed to pass in the Senate. This is just the most recent of numerous attempts to change the law. Congress has tried and failed to change the law multiple times. In the judiciary, “the first 10 U. S. Courts of Appeals [considered] whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30.” Even the executive branch saw this reality.

In 1967, President Johnson signed an Executive Order prohibiting sex discrimination in federal employment. In 1969, President Nixon issued a new order that did the same. In 1998, President Clinton charted a new path and signed an Executive Order prohibiting sexual orientation discrimination in federal employment. The Nixon and Clinton Executive Orders remain in effect today. … As Judge Lynch cogently spelled out, “the Clinton Administration did not argue that the prohibition of sex discrimination in” the prior 1969 Executive Order “already banned, or henceforth would be deemed to ban, sexual orientation discrimination.” In short, President Clinton’s 1998 Executive Order indicates that the Executive Branch, like Congress, has long understood sexual orientation discrimination to be distinct from, and not a form of, sex discrimination.

Justice Kavanaugh in his dissent

Allowing the court to rewrite the law in Bostock and the executive to rewrite the law on DACA, fundamentally changes the distribution of power in the United States government. Who makes the law? The answer should be Congress. Now, the answer is much more ambiguous, or worse, the answer is: everyone. Bureaucrats, judges, and presidents all have just as much legislative power as Congress; though, in the DACA cases, presidents only have this power to change the law, not when it comes to abandoning illegal programs and returning to enforcing the law. The court says to the executive branch “you can pass, but you can’t repeal this legislation.”

Does the DACA Decision Stand On Its Own Right?

Chief Justice Roberts writes that “the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable. But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy.” At this point, the case should be concluded. The legal justification for DACA was that it was a non-enforcement policy. Anything further would be well beyond power possessed by the executive branch. Even the categorical non-enforcement is questionable in light of the Constitutional requirement that the executive “shall take Care that the Laws be faithfully executed.” Nonetheless, Justice Thomas has already declared DACA illegal, and even the court’s opinion does not go so far as to claim DACA has any legal justification. However, the opinion takes an interesting turn. Both sides agree that AG Jeff Sessions wrote the DHS that the benefits DACA conveyed on individuals were not legal (benefits such as their eligibility for Social Security and Medicare). The Chief Justice argues that the DHS decision to abandon DACA was “arbitrary and capricious”-thereby, illegal-because it did not consider separating the benefits from the legal status/non-enforcement portion. This leads to an interesting question. If DHS was justified in removing the benefits, why are we here? The government decided to abandon both parts of DACA: the benefits, which was justified based on Session’s memo declaring them illegal, and the non-enforcement-which has been argued to be unreviewable by the judiciary with no rebuttal. If it is acceptable for the benefits to be withdrawn and the non-enforcement policy is unreviewable, the court cannot object to the DACA repeal. Even under the opinion’s own arguments, it does not stand strongly.

The Effect on November

In both cases, Republican-appointed justices were the cause of this great tragedy. In both cases Chief Justice Roberts sided against the law as written and in Bostock, Trump-appointee Neil Gorsuch wrote the court’s opinion for the court. Back in 2016, the justices argument was very strong behind elected President Trump. Numerous people and religious groups said that we must hold our noses and elect Trump because of the Supreme Court despite many objections to him as a candidate. Even Trump noticed this and told voters in Iowa in July of 2016, “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges. Have no choice, sorry, sorry, sorry. You have no choice.” After these decisions, it’s very likely enthusiasm will drop and less people will buy into this argument. As Trump’s poll numbers have been declining over the past few months, this is not good news for his re-election campaign.

I do not argue that these two cases are the cause of our nation’s decline or abandonment of the Constitution by any stretch. By themselves, they have not caused the death of separation of powers; rather, they recognize the pre-existing fact: separation of powers is dead. It already was. Legislation by the legislative branch alone has been abandoned.

Originally published at The Resurgent on June 19, 2020.




George Washington Fellow at Hillsdale College and host of The Policy Corner on WRFH 101.7FM.

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Josh Evan Barker

Josh Evan Barker

George Washington Fellow at Hillsdale College and host of The Policy Corner on WRFH 101.7FM.

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