Why Legislate When Judges Will Do It for You?

While the Supreme Court remains hobbled and deadlocked, the lower courts are making power grabs.

America’s ongoing political crisis is often described as producing “system paralysis.” The term “spasm” might be more useful. As poison spreads through the body politic, the affected limbs are lashing out more or less randomly in the attempt to function, with predictably chaotic results. Last week’s order in Zubik v. Burwell—in which the U.S. Supreme Court vacated seven decisions, all favoring the government, and sent them back to lower courts with instructions to do something undefined about them that would make everybody happy and keep the noise down—was just such a judicial spasm.

But it’s not just the high Court that is affected. The failure of the political system hasn’t reduced the overall power of the U.S. government. The United States remains the most powerful nation in the world. Unexercised power draws covetous eyes and greedy hands. And some of those greedy hands wield gavels. The Supreme Court may be wounded by loss of a justice, but district courts and courts of appeals are still able to decide cases. And as the system collapses inward, some lower-court judges are having a terrific time.

The most recent such judicial caper has been cut by Judge Andrew Hanen of the Southern District of Texas, who issued the initial order to halt the administration’s “deferred action” policy, which would delay the deportation of certain undocumented aliens. Hanen, who has long been unbecomingly outspoken about his individual policy views on immigration, contends now that the Department of Justice misled his court about the government’s plans to implement the new policy.

I have dealt with government lawyers just enough to know that they do, sometimes, tell courts things that turn out not to be true, and sometimes those misrepresentations are material and knowing; doing that is a serious matter and warrants a serious judicial response. But Hanen’s ire at the government gave him cover to issue an almost shocking threat against 100,000 undocumented immigrants who are not charged with any wrongdoing, are not before his court, and have never done anything to him except, well, he thinks they should go back to where they came from.

He wants the government to file their identities (“including names, addresses, ‘A’ file numbers and all available contact information”) with his court under “seal”—a fairly loose “seal,” since Hanen says he may release them to individual states upon “a showing by a state of actual or imminent damage.” And this judge considers that Texas is being “injured” because its own law requires it to issue driver’s licenses to any immigrant with work authorization in the United States. So his threshold for “damage” is low. As the Center for American Progress’s Ian Millhiser points out, this is a judicial “dox attack” against people who have done nothing to bring them personally before his court. His message to the individuals is clear: If I feel like it, I can ruin your lives because I have a gavel and you have nothing.

Then there’s House of Representatives v. Burwell. This case is yet another judicial attack on the Affordable Care Act. The issue is whether the ACA appropriates money to pay subsidies to the insurance companies in exchange for the reduced premiums they offer to low- and middle-income taxpayers. Under Article I, Section 9, Clause 7, “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” The administration’s position is that the ACA does that; Congress says it doesn’t. On May 12, U.S. District Court for the District of Columbia Judge Rosemary Collyer sided with Congress.

The issue is an important one: The congressional “power of the purse” is its major weapon in inter-branch wars. But this is not a dispute for the Court; it’s between the legislature and the president. What is alarming in House v. Burwell is the judge’s entirely novel ruling that one house of Congress has “standing” to sue the president for spending money in a manner the majority of that House doesn’t approve of.

Nothing in the text or history of the Constitution suggests that the courts have the power to referee disputes like these. Instead, the Constitution gives Congress multiple means to defend its power without involving the courts in the dispute. Congress can investigate the issue; it can require the administration to explain in sworn testimony why it believes it is authorized to spend; it can pass legislation clarifying whether funds are appropriated or not; it can attach budget riders forbidding the administration from making the disputed payments. The president can veto that legislation. The two sides can negotiate a compromise. If the president refuses to follow the congressional interpretation of the law, the House can impeach and the Senate may remove the president. And members of the House can make their case to the public. This is the kind of thing that political actors—presidents and legislators—are expected to do.

Of course, that’s messy and unpredictable, because politics are messy and unpredictable. Bringing a court into such a political dispute, however, doesn’t make it less messy and unpredictable; it just places a dangerous strain on both the courts and the entire system of government. I think the reason the House doesn’t use the weapons at its disposal is that its position is politically untenable. The House majority hates Barack Obama so much that they are willing not only to sacrifice the health coverage of millions of their own constituents but also the financial health of America’s insurance companies. That’s a dangerous thing for a politician to say out loud (“I don’t want you to have health insurance because I dislike someone else”)—much better to get a sympathetic judge to fall on the grenade.

It’s common to charge that Obama’s second term has been marked by executive overreach—an attempt to work around political paralysis by use of presidential authority. History may record instead that these years’ true legacy is the smooth flow of power to politically minded judges and their legislative enablers—an attempt to achieve through litigation what the Republican right has proved utterly unable to manage through politics.