Despite all the recent talk about “our democracy,” the United States today is not a democracy. This is easy to understand. The concept of democracy says that the people governed are the government. In a large civilization, this means not a direct democracy but a representative democracy, which sees the people’s elected representatives make the laws. Today, though, most of the “laws” that govern the people do not come from their elected representatives. Instead, executive branch agencies promulgate them contrary to Article I of the US Constitution. That provides “All legislative Powers herein granted shall be vested in a Congress of the United States…”
This means that, as things stand today, the USA is not a democracy—but there is hope. The US Supreme Court that issued the Dobbs decision overturning Roe v Wade may be just the institution with both the will and the power to restore democracy to the USA.
Image: United States Supreme Court by Matt Popovich.
The Dobbs decision, which held that there is no federal constitutional right to an abortion, announced to the world that this Supreme Court is determined to follow the law honestly and courageously wherever it leads, without regard to political consequences. Fiat justitia ruat coelum! (“Let justice be done though the heavens fall.”)
The defiant roar of the Dobbs Court continues to echo through the political valleys of our land and recently expressed itself in a broadside of four decisions, SEC v. Jarkesey, Loper Bright Enterprises v. Raimondo, Fischer v. United States, and Trump v. United States.
In Jarkesey, the Court was asked to determine whether agency enforcement actions must be tried before a jury. The Court noted that the Constitution’s Seventh Amendment provides, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” When the Security & Exchange Commission acts to recover a monetary penalty for fraud, that action replicates a common law fraud action for damages. Therefore, it cannot be conducted in-house but must be tried to a jury.
In Loper Bright, the Court set aside its 1984 “Chevron doctrine,” which told federal courts to defer to agencies in cases involving regulations. However, the Court again looked to the Constitution—this time, Article III, which states, “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.” Because this inherently includes interpreting statutes, the court must do the interpretation, not the agency (the regulations of which merely provide nuts and bolts for implementing statutes).
In Fischer, the Court looked at a statute that explicitly referred to preserving evidence at issue in government investigations and concluded that it did not apply to congressional proceedings. The Court reached this conclusion because the law is the will of the lawmaker (i.e., Congress) and because the rules of statutory interpretation require each provision to be interpreted in light of all other provisions of the same statute. Trespassing in Congress, even if it interprets congressional acts, is not destroying evidence.
In Trump, the Court was asked to determine whether the judicial branch can sit in judgment against something a president did within the scope of his constitutional responsibilities. It concluded that, while some acts must be analyzed to determine whether they fall within constitutional parameters, if they do fall within those parameters, it violates the separation of powers for the Court to criminalize such acts.
All five of these decisions are logically obvious applications of the separation of powers doctrine. This doctrine recognizes the genius of the American founders to place the three inherent functions of government—legislative, executive, and judicial—in three separate branches of government via the first three articles in the US Constitution.
The Supreme Court has just reminded the executive and judicial branches of government that they must stay in their lines. We are today blessed indeed to have a Supreme Court that is especially cautious about staying in its own lane and rejecting the inappropriate influence of the two political branches on its judicial decisions.
We eagerly look forward to the day the Court decides to let the other shoe drop and restore democracy to our nation. In that anticipated future decision, the Court will reason that because Article I of the US Constitution vests the legislative power of the United States in Congress, and agency regulations are not acts of Congress, agency regulations are not laws. That decision will be the most glorious achievement of the Dobbs court.