Image: Does the United States still have the rule of law or do we just have a “rush to politics”?
Eric Yollick, Guest Editorialist to The Golden Hammer
It’s time for judges to take a hard stand that they must follow the Rule of Law and the Constitution. Our Judicial Branch has lost its way. The Judicial Branch – and recently the Executive Branch – has trampled upon the Separation of Powers Doctrine so fundamentally a part of our American system of government.
It’s time for citizens, however, to take charge. They must make sure that judges whom they elect or whom the other government branches appoint and confirm to judicial positions are people who have the heart of conservative political activists, with minds who know the law, and with the integrity and fortitude to follow the Constitution and the rule of law without rushing to politics when making judicial decisions. That’s where the citizens have lost their way.
More than any other question, I’m now asked what I think of the two Supreme Court decisions during the week of June 14 on transgender, gay, and lesbian rights under Title VII of the Civil Rights Act and on DACA. People are rightly furious with the United States Supreme Court which is acting like a Super Legislature. In both of those decisions, slim majorities of the Justices made new law rather than following the law and the method of legal analysis.
Article III, Section 1, of the United States Constitution provides in its first sentence, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” No other power vests in the judicial branch, only the power to decide cases or controversies in accordance with the law. Among the “Federalist Papers,” Federalist Number 78 (Hamilton) makes clear that the Judicial Branch has “no influence over either the sword or the purse, …It may truly be said to have neither FORCE nor WILL, but merely judgment.” In other words, the Original Intent of the Constitution is that the Judiciary has no power to legislate or to act as the executive branch.
The Constitution makes clear – both for the federal government and in Texas – that the powers of the Judicial, Executive, and Legislative Branches of government must remain separate. That’s the Doctrine of Separation of Powers. One of its best expositions on the Separation of Powers Doctrine came in the 1880 Supreme Court decision of Kilbourn v. Thompson where Justice Samuel Miller wrote a unanimous opinion of the U.S. Supreme Court, created the “Kilbourn Test” still in use today to determine the validity of legislative subpoenas, and wrote:
“It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. To these general propositions there are in the Constitution of the United States some important exceptions. One of these is, that the President is so far made a part of the legislative power, that his assent is required to the enactment of all statutes and resolutions of Congress.
“This, however, is so only to a limited extent, for a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds of each House of Congress.
“So, also, the Senate is made a partaker in the functions of appointing officers and making treaties, which are supposed to be properly executive, by requiring its consent to the appointment of such officers and the ratification of treaties. The Senate also exercises the judicial power of trying impeachments, and the House of preferring articles of impeachment.
“In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and the judicial departments of the government. It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another.”
What we’ve witnessed, however, in recent months is government, at all levels, completely out of control. The grab for power and the “rush to politics” trumps the law and the Separation of Powers Doctrine.
Here are five of my least favorite judicial opinions and a sixth example of the violation of Separation of Powers Doctrine:
Bostock v. Clayton County, Georgia, 2020: The Supreme Court, in a 6 to 3 decision (with the four known liberals, Chief Justice Roberts, and Justice Gorsuch), extended Title VII of the Civil Rights Act to sexual orientation (gay, lesbian, or the like) and gender identity. Justice Samuel Alito wrote in his dissent,
“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive … A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.”
Justice Brett Kavanaugh wrote separately in a dissent,
“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and law… They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”
Department of Homeland Security v. Regents of the University of California, 2020: The Supreme Court, in a 5 to 4 decision (with the four known liberals and Chief Justice Roberts) held that the 2017 decision by the Department of Homeland Security (DHS) to rescind Deferred Action for Childhood Arrivals (DACA) program was “arbitrary and capricious” under the Administrative Procedures Act. President Obama had implemented the DACA program by executive order in 2012. President Trump didn’t utilize an executive order but instead deferred to the regulatory agency administering the program, DHS, to rescind the order. President Trump followed the law properly as did DHS.
Justice Clarence Thomas wrote an opinion which dissented in part from the Supreme Court’s judgment,
“Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case.”
The rush to politics trumped the law.
Obergefell v. Hodges, 2015: The Supreme Court, in a 5 to 4 decision (with the four known liberals and now retired Justice Anthony Kennedy) held that same-sex couples have the fundamental right to marry as a matter of “substantive due process” under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Justice Antonin Scalia wrote a dissenting opinion joined by Justice Thomas in which he wrote,
The Supreme Court’s opinion robs the people of “the freedom to govern themselves.”
The Supreme Court engaged in a legislative act.
Roe v. Wade, 1973: The Supreme Court, in a 7 to 2 decision, held that women have a fundmental right to have an abortion without excessive government interference as a matter of “substantive due process” under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Justice Byron “Whizzer” White, joined in his dissent by Justice William Rehnquist, wrote,
“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
Griswold v. Connecticut, 1965: The Supreme Court, in a 7 to 2 decision, held that there is a “penumbra” of Constitutional protections under the concept of “substantive due process.” This case transformed the Judicial Branch into a Super Legislature.
Justice Hugo Black noted in his dissent that it is not the position of the Supreme Court to make up constitutional rights.
The COVID-19 orders, 2020: Across Texas and across the United States, state and local governments are issuing orders – entirely from the Executive Branch – to require businesses to shut down, to require people to stay in their homes, to require houses of worship to close, and defining a priori who is “essential” and who is not to the economy. The orders, none of which enjoyed legislative authority, have little, if any, force of law, other than merely the willingness of local law enforcement authorities to enforce those orders.
These COVID-19 orders are the worst civil rights violations we have witnessed in six decades. They’re a raw violation of the Separation of Powers Doctrine, whether or not those orders may have public health merit or not. Courts across America, including two federal district courts in Houston, have found the orders unconstitutional.
In Montgomery County, Texas, more people have died from economic-related suicides and from heart attacks and strokes for fear of catching COVID-19, if one went to a hospital for care, than from the COVID-19 disease.
Neither the Judicial Branch nor the Executive Branch has the right to enact laws without passage of those laws first in the Legislative Branch of government. We still have Constitutions in the United States and in Texas.
The Constitution will have no force, however, as long as the citizens sit back and allow the selection of members of the judiciary who are willing to “rush to politics” rather than follow the Rule of Law and the Constitution.
Please don’t just get mad at the United States Supreme Court or at your local government official who has decimated your business, your job, or the local economy. Please take action by getting directly involved in the political process to ensure judges who “rush to politics” will take our Judicial Branch back to its purpose consistent with the Original Intent of the Founding Fathers.
Eric Yollick was the Founder and Publisher of The Golden Hammer, Montgomery County’s leading daily newspaper. In November, 2019, he began a campaign for Judge of the newly-created 457th District Court. Yollick graduated from St. Mark’s School of Texas cum laude, from Princeton University summa cum laude, and from SMU Law School. He is a former President of the Montgomery County Bar Association, a former State Bar of Texas Committee Chairman, and a former member of the American Bar Association House of Delegates. He practices business and real estate litigation in The Woodlands.