Headed to a Constitutional crisis

Dear Readers, Traditions of precedent keep courts from getting “too far over their skies,” and respecting past wisdom keeps courts from legislating from the bench.  Polling approval ratings for the United States Supreme Court are approaching Congressional approval territory (not a positive trend), thanks to the sledgehammer being applied and smashing precedent. 

To be fair, great swings of course corrections in judicial doctrine have benefitted our country.  The Byrnes Supreme Court creatively reinterpreted the Commerce Clause and expanded Congress’ authority to shape our national economy.  The Warren Court dismantled the vicissitudes of the Jim Crow Era, brick-by-brick, by applying the Bill of Rights to the States.  In their own way, each generation’s Court reversed antebellum judicial opinions rooted in the twinned evils of Slavery and State’s Rights, “zombie” philosophies surviving even a Civil War.

The Roberts Court seems intent on reversing progress, snatching away individual rights and paring back federal power.  With Justices Thomas and Alito leading the parade, a conservative bloc is reordering jurisprudence, invoking the mystery of the “original intent” of our forefathers.  Sadly, this is really just fig-leaf legal propaganda.  You now need a history degree to sit on the Supreme Court and are forced to ignore the differences between the Pony Express, muskets and horse-drawn carriages of Colonial America and the jets, internet, and nuclear bombs of present-day America.

Our legal stasis is the envy of the world.  Because a contract is a contract in America, everyone wants to do business in American dollars.  The next thing we may find out, the Roberts Court is going to impose the Gold Standard on our Federal Reserve, revoking Congressional authority to “free-float” the dollar.  After all, this is how Colonial America weighted the dollar.

This may be an absurdist legal proposition, but no one ever thought Congress was prevented from placing legal restrictions on the Office of the President.  The decision to create criminal Presidential Immunity finds no “original intent” echoing from the 1787 Convention in Philadelphia. 

In fact, it is juxtaposed by the debate at the Constitutional Convention of 1787 about avoiding the thumb of a King.  Delegates were conscious of the need for a stronger central government due to the failure of the Articles of Confederation. Still, they wanted to avoid cultivating the political soil where another King George could take seed.  We ended up with three (3) co-equal branches of government, carving out disparate legislative, executive, and judicial sovereign vessels, with Congress being preeminent as the Article I legislative body.

Storm clouds are on the horizon.  The Roberts Court may eventually adopt the “independent state legislature” theory of voting rights.  In essence, this holds that each state legislature (not even state government) has the sole power to interpret election results, eliminating any efficacy for voting rights. 

Serving in Congress is an enormous personal sacrifice.  You care to the needs of local constituents while shuttling back and forth to Washington for defined voting sessions; family life for many congressmen and women is a myth.  During the pandemic, both Houses of Congress smartly adopted proxy rules to keep individual legislators dispersed and safe.  Our government kept humming along despite the illness and threat of illness brought on by COVID.

Can you vote by congressional pandemic-era proxy voting rules?  An unanswered judicial query.  Kevin McCarthy’s Republican House majority used opposition to it as a legal subterfuge to undermine the previous Congress’ Democratic legislative agenda.  In Texas, Federal District Court Judge James Hendrix has granted McCarthy’s gambit and struck down any laws passed by proxy congressional.  His decision is on appeal to the 5th Circuit Court of Appeals on its way to the Supreme Court.

Senator Mitch McConnell says this is constitutional nonsense, even though he is against proxy voting AND  opposed to many Democratic initiatives.  He has filed an amicus (friend of the Court) brief, authored by former Attorney General William Barr, in the 5th Circuit Court of Appeals supporting the principle that both branches of government have sole authority to order their own house free of judicial mischief; courts have no authority over Congress.

Courts are “mad” for judicial overreach.  Congress should be able to govern itself without another branch of government setting rules; the filibuster exists as a Senate rule having no antecedent in the Constitution.  Sen. McConnell’s warnings falling on deaf ears is dangerous.  We used to be primarily concerned about the perils of an Imperial President.  Our constitutional fears may have to shift to tyrannical courts usurping our congressional branch.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.