This is a brief think-piece on recent jurisprudence and the dangers it poses.  The purpose is to get everyone thinking (I know many people already are) about what we are buying into with reflexive acceptance of unfettered judicial authority.

The first case under discussion is one I wrote about earlier this week:  the ruling of federal district Judge Virginia Phillips that the Don’t Ask, Don’t Tell (DADT) policy is unconstitutional, and her subsequent imposition of an injunction against enforcement of the policy.  My concern in the earlier piece was that she was overstepping her authority in issuing an actionable order to a department of the federal executive.  As I elaborated in an exchange with a reader at my home blog (The Optimistic Conservative), it’s one thing for a judge to rule something unconstitutional.  It’s another for the judge to issue an order that purports to require positive action from the party ruled against.  And it is especially another matter if the party ruled against is an agency of the federal executive – not a state or local entity, but a coequal branch of the federal government.

If you do a little basic critical thinking, instead of simply repeating the “judicial review” mantra we were all taught in school, you will understand that there is more than one way to see this situation.  Does “judicial review” mean that judges have the authority to direct Congress or the executive agencies to change their policies?  Not necessarily.  In fact, a sound case can be made that that’s not what the Framers of the Constitution had in mind.  It is also hard to think of landmark cases that would validate the view that judges are empowered to direct policy.

There is a good argument, instead, that the proper effect of a judicial ruling like Judge Phillips’ is to advise the other branches of government that a policy they are pursuing is unenforceable, that it need not complied with, and that it can henceforth be the basis of lawsuits and the award of damages.  Under this interpretation, the ball is back in the courts of the other two branches to decide how to proceed.  There is even a possibility, if Congress and the executive are agreed on something, and if the people are with them, that they can effectively ignore even a ruling of unconstitutionality by the US Supreme Court.

We don’t have a clear-cut, universal sentiment on this, in the minds of the people or our political class, because it has only rarely and recently come up.  I would not claim that there is any fully articulated or absolutely “correct” view on the matter.  But this is in contrast to advocates who happen to like the decisions made by activist judges, and who simply proclaim that it’s obvious that the power of judicial review confers on judges the power to order the legislature and the executive to take actions.

That’s not obvious, however, and the DADT ruling brings up one reason why.  If DOD were to cease enforcing DADT right now, the default law in effect would require charging announced homosexuals under the Uniform Code of Military Justice (which still has sodomy on the books), whenever the gay servicemembers’ sexual relationships came to the specific notice of the chain of command.  We could get wrapped around whether this is a consequence the judge intends; i.e.,  she wants to strip away DADT so DOD will have no choice but to begin a series of unpopular disciplinary actions, which would function as a political goad.

But the more important point is that, whatever the judge’s intentions, there are foreseeable consequences from compliance with her injunction that would result in tremendous administrative hassle for DOD.  The Department cannot merely “cease enforcement”; it has to do something else.  (And it can’t even decide what that “something else” is; that’s up to Congress.)  If that aspect of the situation is not the judge’s responsibility, then she should not have the authority to bring these consequences down on DOD.  That is simply a basic principle of good government.  Judicial review cannot be a pact consigning us, at the hands of judges with no responsibility for execution, to administrative or legal chaos.  If it is, the people have every right to object to it and set limits on it.

Meanwhile, DOD is in the middle of a study of the administrative requirements for a change of policy.  This too is something the judge should not have the power to simply override.  Where judges have no responsibility for practical outcomes, they should not have authority to order actions.  Their authority lies in interpreting law, not in directing policy.

The DADT injunction is the first major case I can think of in which a federal judge issued an order for action to a federal department.  It follows other cases in which highly questionable orders were issued by the judiciary, but the previous cases of interest did not involve the federal judiciary and the federal executive.  The court-ordered school busing of the 1970s is an obvious example, but it dealt with federal court orders to local school districts.  The 1985 case in which a federal judge ordered Kansas City to raise taxes and spend more on its public school system is another clearly analogous instance, but again, this directive was issued to a local school district and not a branch of the federal government.  At the state level, an obvious case would be the Massachusetts supreme court ruling in 2003 that gay couples had the legal right to marry, and giving the state legislature 180 days to comply with the ruling.

It has only been within the span of my lifetime that we have become accustomed to judges issuing rulings that require the people’s money to be confiscated and spent, executive departments’ regulations to be changed, and legislatures to take action to “comply.”  Judicial rulings have been important tiebreakers throughout the life of the Republic, but in landmark cases from Marbury v. Madison to Dred Scott, Schechter Poultry Corp. v. United States (the “sick chicken” case that brought down the New Deal) to Roe v. Wade, Engel v. Vitale (school prayer) to Kelo, such rulings have been intended to set a legal and judicial environment in which the other branches of government know their limitations and requirements.  This is a very different thing, in its concrete effect, from the judicial branch directing specific actions – and especially actions that amount to the making of policy and the coercion of the people and their representatives.

It’s in this context that we have to consider the Michigan federal judge’s decision this month that the Obamacare insurance mandate is constitutional.  Whether it is or isn’t, what’s increasingly alarming is what judges might do about what they consider constitutional or unconstitutional.  Judge George Steeh’s argument in the insurance mandate case is summarized by AP thus:

Basically, … we’re all either already or potentially engaged in health-care commerce because none of us will fail to seek essential medical services if they’re required and none of us will be denied essential services if we can’t pay… That being so, the feds can regulate how those services are paid for.

… what the court is saying [is] “because you’ll eventually decide to avail yourself of life-and-death services that can’t be refused you, the federal government can make you help pay for them”…

… if we’re all necessarily “active” in health-care commerce at all times, theoretically there’s no limit to what sort of further activity can be mandated in the interest of spreading costs.

There are problems with this line of reasoning, of course, but we’re thinking too small if we think only in terms of whether Congress will take it too far.  What about judges?  If they can order the people to be taxed and agencies from the coequal executive branch to revise their policies, what can’t they do?

Consider the prospect of a judge combining the principles of the Phillips DADT injunction and the Steeh insurance mandate ruling.  Make the issue retirement funding.  By the principle of the insurance mandate ruling, everyone in America will participate at some level in “retirement commerce.”  All we have to do is fog a mirror, and continue to do so after the designated retirement age.  Therefore, the federal government, in the interest of regulating how this is paid for, can make us help pay for it – and it is not constrained to work solely within the framework of Social Security to do so, any more than it’s constrained to work within the framework of Medicare to make us help pay for health care.

Adding the principle of the DADT injunction to this one, we have the prospect of a judge issuing an order that goes beyond findings of constitutionality and requires federal agencies to take action.  The most likely basis for such an order would be a finding of “disparate impact” on different population groups relative to private-sector retirement earnings.  Disparate impact (racial, in that case) was the basis for the federal judge’s 1985 decision requiring Kansas City to raise taxes and spend more on schools.

Can you see how the judicial precedents may already be in place for the federal courts to order the confiscation by executive agencies of all private 401(k)s, as a means of eliminating the “disparate impact” of people’s different work choices on their retirement benefits?  It’s not just a matter of what Congress can do to us.  We also have to worry about judges ordering action by the legislature or the executive departments, based on the reasons those judges have used to award the other branches the authority to regulate and impose mandates on us.  Basically, if the government has the authority to impose a requirement on us, a judge can exercise that authority.

The appeals process for the DADT injunction and the first insurance mandate case will be of exceptional importance to our future.  If these rulings are not overturned on appeal, it is only a matter of time until a federal judge orders coercions of the people that even our legislative representatives would fear to enact.  Longheaded analysts foresaw this kind of prospect decades ago, as judicial activism extended its reach incrementally and in seemingly minor ways.  But now we are two appeals processes shy of a tremendously vulnerable condition: one in which nothing stands between us and autocratic judicial rule except a major constitutional crisis between the federal branches.

My own opinion is that the current Supreme Court will reverse the insurance mandate ruling, and could very well invalidate the injunction issued by Judge Phillips regarding DADT.  We need not despair of where we are today, but we have to learn from it.  Judicial precedent can be the most dangerous quantity in our form of government, and we the people must change our own mindset about what it means, what judicial review means, and what authority we have, through Congress and the office of president, to define and limit it.  It has always been the case that ceding absolute power to the judiciary would lead to judicial autocracy.  We can no longer afford to pretend it’s not happening.

Cross-posted at The Optimistic Conservative.

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