Kavanaugh hearings show Congress shifts lawmaking power to Court

Forget your high school civics class, the one where they taught you how laws are made. It wasn’t true.

Here’s the truth. Congress sometimes manages to pass broad laws, leaving it up to the experts — regulators or administrators — to fill in the details that apply to people.  While rulemaking, they’re under heavy pressure from lobbyists, who remain invisible to the public.

After the rules are adopted, opponents to the law or rules take their arguments to court.  They may claim the law is unconstitutional or the rules are not in line with the law.  Judges then say what the law is.

The centerpiece of the confirmation hearings of Supreme Court nominee Brett Kavanaugh, was if he would provide the decisive vote to overturn the Court’s decision in Roe v. Wade.  It had ruled that a woman’s right to choose to have an abortion was part of her right to privacy, protected from government interference.

In effect, the Court, not the Congress, has become the branch of government that determines the fate of Roe and it may do so by as little as a single vote. The original decision was based on an appeal from a Texas ruling, not from a law passed by Congress.  In short, the Court became the only federal lawmaker on abortion.

During the hearings, Sen. Ben Sasse, a Nebraska Republican, gave the Senate Judiciary Committee a little civics lecture, dealing with this point.  What he said was important.  It has been viewed by more than a million people via YouTube.  His four points are worth the attention.

First, he said, “In our system, the legislative branch is supposed to be the center of our politics.”

Second, he said, “It’s not.”

Third, “…when we don’t do a lot of the big actual political debating here, we transfer it to the Supreme Court.”

Fourth, “…we badly need to restore the proper duties and the balance of power from our constitutional system.”

In effect, he suggested that, while the legislative, executive and judicial branches are meant to be equal, the Constitution’s drafters placed Congress in Article I, because that is where policy is supposed to be made.  Protesters should not be at the Supreme Court, but at the Capitol.

Sasse found the failure of Congress to do its job went back to the 1930s, when it shifted much responsibility to administrators, those infamous “bureaucrats.”

But he admitted there’s more than that. He said to his fellow senators, “… if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is pretty good strategy.”

It takes courage – accepting the risk of losing reelection – to vote for controversial legislation. It’s this aversion to political risk that leads legislators to shift power to administrators, with the last word going to “super-legislators,” the nine Supreme Court justices.

If Congress did its job, hearings on Court nominees would focus less on how a judge would legislate and more on a person’s “temperament and character” and on their ability to keep their personal views out of decision-making.

Sasse’s speech was an outstanding exercise in American idealism.  There are a few reasons why it’s not likely to happen.

Even he admitted that Congress cannot master the details of all legislation and must leave some to experts.  The question is how far that goes, and some Democrats seem to believe much must be left to unelected experts.

Perhaps laws should be both more specific and broader in scope.  The intent would be to transfer less authority to administrators and less power to lobbyists. Just look at the tax code. It’s far less complex than the bewildering IRS rules.

Court decisions have always dealt with policy, and judging is not merely a question of following the law. The Court makes law.  In the 1857 Dred Scott decision, the Court ruled that black people were not really people at all.  That decision was pure politics, a hugely misguided attempt to forestall war.

The inability to compromise blocks Congress from making needed policy decisions.  An immigration policy that was nearing bipartisan agreement has died on the altar of the Mexican border wall.  Trade policy, clearly a congressional power, is left to a president who never saw a tariff he didn’t like.

In the end, if Sasse’s view is to prevail, it depends on voters focusing more on the “temperament and character” of congressional and presidential candidates and their political orientation than on the ill-advised pledges they make to get elected and then can’t or shouldn’t keep.

Gordon L. Weil

About Gordon L. Weil

Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.