The Sudden Death of Checks and Balances

 Today marks a significant shift in power in America.

Today, the Supreme Court killed the nationwide, or “universal”, injunction, which means that the courts just handed significant power to Congress and the President.

I certainly try not to be one that screams that the sky is falling at every turn, but I do hope that anyone that reads this can understand the seriousness of the implications that will follow from this shift in power.

To fully understand what happened today, it is important to have some background.

When our country was created, it created a few systems of checks and balances to try and help distribute power among competing interests. The idea was that if power could accumulate in one position or one person or one branch of government, that we would return to the state of kings, queens, and monarchs that the Founders tried to leave.

In this check and balance distribution of power, the courts were created, but, admittedly, the Founders did not put much in the Constitution to fully explain the role of the courts.

So, pretty quickly out of the start gates, America was faced with a difficult question – what happens when the President refuses to follow the law? The case was Marbury v. Madison, where Thomas Jefferson had refused to honor lawful acts taken by the previous President (John Adams).

The Supreme Court was in a quandary, as the courts had been given no ability in the Constitution to enforce any of their orders. Instead, they relied on the President to do so. They knew that if they ordered Thomas Jefferson to follow a law he had already decided not to follow, they would have no way to enforce their order.

This produced the risk that the whole system of law and order could collapse that America was trying to build, as the President would clearly be established as above the law if the Court ordered him to do something and he laughed at them and refused.

Due to that, instead of ordering the President to follow the law, the Supreme Court pretended to act with restraint. The Supreme Court did state that Jefferson broke the law, but then the Supreme Court reviewed whether the Act of Congress that had set up the judiciary (a Congress that was composed of many people who helped establish America, and the Act that was signed and approved by George Washington) was constitutional.

There were arguments made in the case over whether or not the Supreme Court even could determine whether a law was constitutional as it was not expressly written in the Constitution. Ultimately though, the Supreme Court said they did have the power to rule on whether a law was constitutional or not, and they ruled that the first Judiciary Act was unconstitutional as it had given the Supreme Court powers not set forth in the Constitution.

The irony of the ruling was deep – as the Supreme Court took a power not set forth in the Constitution (that of constitutional review) while turning another power down under the excuse that the Supreme Court could not have power not set forth in the Constitution.

However, their power play worked. Jefferson was happy as he did not have to follow the law. American citizens saw the Supreme Court as wise and restrained, and thus began the tradition that the Supreme Court has the final say on all things constitutional. To this day, the Supreme Court’s source of power has simply been on the respect accorded to their decisions, and they have openly acknowledged that from time to time.

After Marbury v. Madison though, it still took Americans a long time to assert their constitutional rights in court. This process of constitutional interpretation continued to evolve over time.

But, one important fact to remember is that during this evolutionary period, the government was not passing intense amounts of laws, and the government was not trying to dictate many individual decisions anywhere similar to the scale of legislation today.

Additionally, for years, many elected officials took their oath to the Constitution seriously. Oaths used to mean something to people, and oaths served as a check and balance and helped restrain the actions of elected officials.

However, as desires to control and political fights increased, Congress started passing more aggressive and sweeping legislation, and the oath became less and less significant to the point where it is no longer a measurable check and balance.

Over the years in America people have been put in jail for advocating for socialism, people have been forcibly sterilized, people have been enslaved, an entire religion was ordered to be exterminated, property has been seized and taken, and many laws have been passed that have offended very basic notions of liberty and justice.

Regardless of where a person falls politically, they have been protected by the courts stepping in and stating that laws were unconstitutional, as both sides of the political spectrum have had laws struck down that were violative of constitutional rights. Our system has been built over hundreds of years, leading us to where we are today.

As society and law evolved though, an important shift started to occur. At first, a judge could refuse to enforce an unconstitutional law on a case-by-case basis, as law enforcement usually meant that you had to be taken to a trial an appear in front of a judge. Thus, nationwide injunctions were not always necessary, as enforcing the law usually meant that you would appear in front of a judge.

However, laws started to become more intrusive and more commanding, and people could find themselves in trouble with law enforcement but not be in front of a judge.

Due to this, judges started to issue an injunction, or an order, against the government, stating that the government officials would be arrested if they undertook to do things that violated constitutional rights. For laws that were strongly unconstitutional, the judges would direct that they not be enforced anywhere as they so patently violated the Constitution.

For example, consider the situation where the government passes a law and states that police can simply come into your house and search everything, including you, without cause or without a warrant. Such a law would be patently unconstitutional, but you would have no judge between you and the police officer at your door.

Once you or your house was searched, you had already lost your rights (especially if you were strip searched in the process), and having a judge later say that the action was unconstitutional would be of little help.

The courts were quite restrained in issuing such sweeping injunctions though, and they kept to situations that most everyone agreed was an egregious abuse of power.

In essence, those of us that have not gone to court have been protected by the proactive who have gone to court. Their arguments and cases have given us the power to enjoy our constitutional rights, ultimately because the government was enjoined from enforcing the law. With the respect given judicial decisions, many decisions did not require a complete injunction, but the proactive nature of individuals helped us have our rights we enjoy today.

Fast forward though to our hyper-politicized climate where we are trying to control most everything a person does, and the rates of nationwide injunctions being issued have skyrocketed. Many people say that the judiciary has become an “activist” judiciary and that it is asserting too much power as it has stopped the implementation of many laws and executive orders.

The Supreme Court in its decision notes the serious rise in nationwide injunctions, but it conveniently ignores one important factor – that there is an extreme rise in the passage of unconstitutional laws as well.

Congress, the President, and others in power are not really bound by an oath of office anymore as society no longer has a norm that cares much about oaths or truth-telling.

There are not great checks and balances on our elected officials, especially because the Attorney General is often from the same party or appointed by the President or Governor in some states. So, the courts have been the main backstop to preventing the enforcement of unconstitutional legislation that passes more and more.

We really have nothing else in place, as this is what our history and system have given us. We have been protected by the proactive nature of some who have obtained a variety of nationwide injunctions.

Have some judges abused the power given to them? Absolutely, there is no doubt. Should the Supreme Court have taken all of the power it did in Marbury v. Madison? Probably not. Was the evolution of the nationwide injunction was more responsive than thought through? Yes, but it still served an important check as nothing else was done by Congress to fill the void.

However, I strongly believe that most uses of the nationwide injunction have been in appropriate circumstances and have strongly protected us from being subject to unconstitutional laws. Thus, while there have been abuses, I do not believe they constitute the majority of the time yet.

In today’s Supreme Court case though, which is Trump v. CASA, Inc., the Supreme Court evaluated whether a lowly District Court judge in one town in one state has the authority to issue nationwide injunctions, and they decided “no”. A court can only grant relief to the parties before the court, and cannot tell the government what to do or not to do with respect to everyone else in America.

This means, in practical effect, that the government can violate any of your constitutional rights, unless you have the ability to file a lawsuit and get in court on your own, as the judges can only help the people actually in court.

The Supreme Court asked the question that many people have wrestled with for some time now – does having a proper check and balance mean that we have to have an imperial judiciary? In other words, do we have to have a system where the Supreme Court decides everything?

As the politicalization of the courts has increased, it has become obvious that there is not much of a check and balance on the Supreme Court. People have defended that, saying that it is a needed balance to stop an “imperial Executive”, but the Supreme Court today decided that the courts were no longer going to be the check and balance on an “imperial Executive” by being “imperial” themselves.

Some may celebrate this as a showing of judicial restraint. It may be termed that, but from my view, it is simply judicial abdication of a role it took and held for over two centuries, a role that the legal system evolved around. For better or for worse, the courts were our last stop, and now they only serve to protect those with money or an ability to file a lawsuit.

Now, the Supreme Court has left us with no check and balance against a federal law authorizing the military to enter our homes, or a law stating that the federal government can simply take all of our information from every company that has it, or a law stating that all guns have to be surrendered – unless we have the money and access to attorneys to sue.

The Supreme Court expressly allowed, from here forward, the President and Congress to issue and enforce unconstitutional laws, orders, or actions against all Americans who cannot get to court in time to stop the violation of the rights. The Supreme Court today abdicated the responsibility it took so long ago, leaving us with little to nothing to fill the void.

Just think for a minute about some of the laws you have heard or seen passed by those on the other side of the political spectrum from you. You will need to sue over every unconstitutional law if you are to have any protection, as courts can now only give relief to the parties in the case before them.

From gun rights to gay marriage to parental rights with children to protecting religious freedom and the freedom of speech, the Constitution has protected various Americans on all sides of the political spectrum through court orders that have effectively stopped the Executive branch from enforcing the unconstitutional laws.

What this means for today is that the government can enforce whatever laws, policies, or orders it desires against any person who was not able to make it into court to defend their rights. Our legislative and executive branches just took a significant step towards being more imperial in nature, as there is little in their way now.

The billionaires will be fine, of course. The rest of us? That remains to be seen, but it is deeply troubling that the Supreme Court simply abdicated two centuries’ worth of responsibility and walked away from being a check and balance. It was an immense power transfer to Congress and the Executive branches, as it leaves us with no check and balance in place.

To be clear, I am all for appropriate checks and balances on the judiciary. I do believe that the judiciary was becoming too “imperialistic” in nature as some judges enjoyed being able to stop laws they disagreed with, and abuses of power were increasing.

There are appropriate checks and balances though that would not simply remove one of our main, and last, checks and balances against abuses of power, but the Supreme Court paid no attention to other options and simply handed the power to the other two branches.

It broke my heart to see the Court’s decision today. We are not in a place of unity politically, and the chance of Congress uniting to appropriately check and balance itself and the President is slim to none.

If the Courts felt that Marbury v. Madison was wrong and they shouldn’t have taken that power, today is not the day to simply wholesale walk away from that power, it is the day rather to start us on a path to correct things while not undermining everything built in the process. There are appropriate ways to fix bad decisions, but simply walking away is not how to do it.

What does this mean for you though? It means now that you need to be able to associate with a constitutional attorney and that you need to start saving for litigation to enforce constitutional rights at times.

As an aside, some members of the Supreme Court are openly calling for the removal of the ability for states to sue on behalf of the citizens in the state as well, and that could soon follow. This means that your state Attorney General will no longer be able to protect you against unconstitutional laws either if this were to go through.

Currently though, we can still associate together and pool money and resources to maintain important rights by having an association sue on our behalf. However, there are also forces at work to limit or reduce the ability of an association to sue on your behalf, including here in Utah where the Utah legislature has openly proposed banning the rights of associations to sue on behalf of members.

So, my prediction is that citizens will need to associate together in associations and start paying monthly dues to hire a full-time attorney that can take constitutional challenges to court on behalf of those in the association. These associations will also need to work to strongly protect their rights to be in cases on behalf of their members, as that right is being challenged.

Those citizens who can afford to be part of such an association will now have more rights than those that cannot afford to be part of an association, and equal protection will become a thing of the past as the rich, or those who timely associate together, will have constitutional protections while everyone else will not.

There still are some situations where all of us may be protected by a court’s order, but these situations are more rare and often take years to achieve, meaning that you can be subject to an unconstitutional law for years before getting relief.

And, it will do little good to have the government be told that it violated your rights when you couldn’t speak for a few years, or when you couldn’t assemble together, or have guns for self defense, as no court is able to restore that which was lost during those years that the unconstitutional law was in effect.

I will be working on proposals that are an appropriate check and balance on the judiciary, as we need to focus on helping Utah properly balance things in light of this federal decision. I will also be exploring the creation of an association to help defend constitutional rights. Please let me know if you are interested in working on or being a part of any of these things moving forward.

Whether you celebrate today’s decision or not, this is your fair warning. You will mostly only have the constitutional rights that you personally stand up for in court now, so you now have the responsibility and obligation to be an active part of watching and acting when unconstitutional legislation is passed. Otherwise, the government can enforce unconstitutional laws against you, while the proactive and watchful may maintain their rights.

It is a new day in America, and my prediction is that this will unleash a torrent of legislative power grabs, as politicians know that most of us will not take this seriously. Most of us will sit by, doing nothing, until we feel the ominous power of what the loss of constitutional rights really entails.

At that point though, it will likely be too late to do much, so please take this seriously and begin to explore what you need to do to be prepared to protect and preserve the rights that are important to you.