Last week, Maine joined other states in two federal court cases seeking to overturn Trump Administration moves.
By now, that’s routine. States frequently team up to oppose actions by the executive branch. The party doesn’t matter. States governed by Democrats challenge President Trump and states governed by Republicans are still chasing President Obama.
The result is a new form of government that they don’t teach about in civics class. In fact, it is an entirely new layer of government not foreseen in the Constitution. States directly insert themselves in federal lawmaking and use the courts to approve, reject or even modify the law.
Here’s how it works. First, Congress passes a bill, and it is signed by the president. That rarely happens unless the House and Senate majorities and the president belong to the same party.
The bill may allow regulators or an executive agency to issue rules to fill in the details not contained in the bill. Eventually, the rules are issued.
In a state under the control of the minority party in Congress, which had opposed the new law, its attorney general asks a federal court to decide that the law or its rules violate the Constitution. That state is likely to be joined by other states under control of the same minority party.
That action may prompt states supporting the congressional action to band together to enter the case on the other side. The congressional debate is transferred to court.
The case goes to a federal district court, composed of a single judge. The complaining state will try to select a district court where a judge will be sympathetic to its position.
While some may fear that judges make purely political decisions, its easy to forecast their decisions based on their known views or party affiliation. For example, a judge who generally defers to decisions made by the president makes predictable rulings about executive powers.
The district judge’s opinion will be appealed. But the complainants may urge the judge to order a delay in the law’s effective date until the appeals are completed. That could keep it from being applied for many months or even years. In short, a single judge can frustrate the will of Congress or the president.
Federal judges serve for life, and a president and supportive Senate will try to get people onto the bench who represent their partisan views. Remaining on the bench for decades, they can block laws adopted years later by the other party, when it is in power.
The case may eventually work its way from the district court through an appeals court to the U.S. Supreme Court. The nine justices, appointed for life, or really only a five-judge majority of them, have the last word on the law.
Take the decision on the Affordable Care Act. The Court ruled it is constitutional by a vote of 5-4. Some states are again challenging it in hopes that the Supreme Court, with a couple of new Trump appointees, might change its mind.
Justices are supposed to respect the Court’s previous decisions to ensure that people can rely on them in the future. But as the political makeup of the Court changes over time, this principle is increasingly ignored.
Thus, federal laws may be challenged, suspended for long periods or blocked by states linked with the losing side in Congress. A law properly adopted by Congress may be overturned by the swing vote of a single Supreme Court justice, in office for life after having been confirmed by a Senate majority of as little as one vote.
The mere fact that Maine can join two multi-state federal appeals in a single week is a good indication of how routine this new form government decision-making has become.
This “states plus courts” decision-making can deprive the president and Congress of their constitutional roles. In effect, this process is an addition to the intended “checks and balances” of the Constitution. It overrides them.
Congress could limit the powers of courts, but that’s unlikely. Voters have the only power to stop this process.
Few voters pay attention to how candidates for president or senator would handle judicial appointments, except perhaps positions on a wedge issue like abortion. Do voters recognize that a state attorney-general, elected either directly or indirectly, as in Maine, can have a major influence on federal laws?
This form of lawmaking usually escapes the public view. It’s time for voters and the media to pay more attention to this almost invisible, but considerable, power.