At Law & Liberty, Chad Squitieri (Catholic): The Court and the Separation of Powers. From the introduction:
Under Chief Justice Roberts, the Supreme Court has demonstrated a willingness to enforce the Constitution’s separation-of-powers principles. This is welcome news for those who think that aspects of the administrative state run afoul of important constitutional lines separating the federal government’s three coequal branches. But not everyone has found the Roberts Court’s separation-of-powers jurisprudence to be cause for celebration.
A growing number of jurists and scholars have critiqued the Court for putatively “aggrandizing” itself at the expense of Congress and the president. Justice Kagan, for example, has written that “in recent years,” the Supreme Court “has too often taken for itself decision-making authority Congress assigned to agencies.” Likewise, two law professors contend that we live amid a “juristocratic counterrevolution.”
This type of “judicial aggrandizement” critique is misguided in one sense, yet persuasive in another. Building upon my recent work published in the Cornell Law Review Online, I aim to illuminate what the judicial aggrandizement critique gets both wrong and right.
And from later on:
To the extent that the judicial aggrandizement critique is premised on the idea that federal courts should play little to no role in enforcing the separation of powers, the critique is misguided. That is because, in the American context, the federal judiciary is truly an independent, coequal branch of government.
The independent nature of the federal judiciary distinguishes the government of the United States from that of the United Kingdom. In the United Kingdom, courts are not truly independent from (or equal to) Parliament. That is in part because Parliament is sovereign. And as the English theorist A. V. Dicey explained, the principle of Parliamentary sovereignty requires that “any Act of Parliament … will be obeyed by the courts.”
Things are different on this side of the Atlantic. As Justice Thomas explains, “One of the fundamental differences between our Government and the British Government” is that “Parliament was supreme” and “Congress is not.” The federal judiciary is therefore not required to blindly “obey” acts of Congress, or to act as if the constitutionality of federal statutes must be determined by a “sovereign” Congress alone.
Instead, federal courts must act in accordance with the demands of the relevant sovereign in America: “We the People.” And the sovereign People’s Constitution places limitations on Congress and the president that cannot be altered through ordinary legislation. Thus, to properly respect the sovereign People’s demands, the federal judiciary must ensure that acts of Congress are constitutional before giving legal effect to those acts in the People’s federal courts.
Posted at 6:14 AM