Courts should not do Congress’ job

In a recent interview, Russian President Vladimir Putin expressed his apparent frustration with the "inefficiency" of the U.S. political system. He said that our system "eats itself."

We should be gratified by our alleged "inefficiencies."

That is because the "Republican Form of government" provided for in the U.S. Constitution, and guaranteed to the states (U.S. Const. art. IV, sec. 4), divides power among the branches of government, and also among the states and the federal government, so that "our citizens ... have two political capacities, one state and one federal, each protected from incursion by the other." U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). See United States v. Brown, 381 U.S. 437, 443 (1965) (The separation of powers is "a bulwark against tyranny"; "if a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will.")

In effect, our individual rights are protected from governmental abrogation by the very "inefficiencies" Putin complains about.

But sometimes our government of "checks and balances" bogs down. "Our Federalism" (Younger v. Harris, 401 U.S. 37 (1971)) is again center stage, this time in the "war" California Gov. Jerry Brown claims the administration of President Donald J. Trump is waging against our state by filing suit against us in the U.S. District Court for the Eastern District of California. Brown is trumpeting the 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people") in the establishment of "sanctuary cities" and a "sanctuary state," by passing laws that are designed to inhibit federal immigration officers from rounding up illegal aliens.

U.S. Attorney General Jeff Sessions argues that "Federal law is the supreme law of the land."

The Constitution's supremacy clause provides that: "The Constitution and Laws of the United States which shall be made in Pursuance thereto; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding." U.S. Const. art. VI. But in discussing that clause, the Framers made it clear that "[I]t will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such." The Federalist No. 33 (Alexander Hamilton)

The U.S. Supreme Court has held that "over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens." Fiallo v. Bell, 430 U.S. 787, 792 (1977). "As a result, the Court has consistently held that the substantive requirements an alien must meet to enter this country, to remain here, or to become a citizen, are virtually political questions, matters within the discretion of Congress and outside the scope of all but the most limited judicial review." Laurence H. Tribe, "American Constitutional Law" (3d ed.) p.973.

On the other hand, the states argue that in Printz v. United States, 117 S. Ct. 2365 (1997), the Supreme Court held that "[t]he Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." However, the gun control legislation at issue in Printz did not attach its mandate to federal funds allocated to the states, and as Harvard law professor Laurence Tribe concludes: "Congress' power over the federal purse will, as a practical matter, likely ensure its ability to obtain the assistance of state executives and judicial officials when needed." Tribe at p.893.

Thus, the Constitution's "spending clause" might allow Congress to condition the federal spending at issue on the cities' and states' compliance with the cooperation sought. South Dakota v. Dole, 483 U.S. 203 (1987) (by failing to raise its drinking age to 21 as required by federal law, South Dakota would lose only 5 percent of the federal highway funds otherwise obtainable, and such a condition on the receipt of federal highway funds would be but "mild encouragement" to the states). See Nat'l Federation of Independent Bus. v. Sebelius, 132 S. Ct. 2566, 2603 (2012). ("The States are separate and independent sovereigns. Sometimes they have to act like it.").

If, on the other hand, it is found that withholding substantial federal funds constituted "economic dragooning that leaves the [cities or] States with no real option but to acquiesce," then such withholding would be outside the "spending clause" power. Id. at 2604-05.

The states and cities argue that virtually all of their federal funds would be at risk if the Trump administration imposes its economic sanctions against "sanctuary" cities and states, but the U.S. Department of Justice argues that only a small fraction would be withheld.

The cities and states also argue that Trump may not withhold such funds pursuant to an executive order; that only Congress can do that. But the DOJ argues that the executive order is an implementation of the president's duty to "take Care that the Law be faithfully executed." U.S. Const. art. II, sec. 3, cl. 5.

These are interesting constitutional issues, but rather than leaving it to unelected judges to resolve this political "war," where much of the "cannon fodder" are essentially disenfranchised immigrant men, women and children, wouldn't it be better if our elected officials did their jobs and hammered out a compromise solution? Haven't the president and many members from both sides of the aisle in Congress said as much?

After all, in what was perhaps the lowest point in its history, Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), the Supreme Court acted as if "judicial power could succeed where political power had failed." Bernard Schwartz, A History of the Supreme Court" (1993).

Since our federal government that Putin finds so "inefficient" works best when its three branches attend to their constitutionally delegated responsibilities, rather than asking the courts to do their job for them, our elected representatives should do what they're being paid for and get down to business.