September 14, 2021
Under the U.S. Constitution, “all legislative powers” are granted to Congress. The way Congress makes laws is reasonably well known. For those of a certain age, a Saturday morning cartoon classic, “I’m Just a Bill,” will come to mind.
If a citizen wants to understand what the law requires, however, just looking at statutes passed by Congress won’t be enough. Though the other branches don’t make law, they are sources of legal rules that significantly affect the legal rights and responsibilities of citizens.
The role of the executive branch as a source of law – through the practice of creating regulations meant to put statutes passed by Congress into effect – has received more attention in recent decades.
Better known, in some ways, is the judicial branch’s role in applying existing laws to specific disputes. The controversy over a Texas law that allows individual lawsuits against providers of abortions performed after roughly six weeks shows there is still quite a bit of (understandable) ignorance about the role of the Supreme Court and its procedures.
The court’s basic role is to apply existing legal rules – which could be provisions of the Constitution, laws passed by Congress, treaty obligations, etc. – in specific situations. So, when we think about the court, we tend to think about rulings saying a certain law passed by Congress or one of the states was unconstitutional because it conflicted with a specific constitutional guarantee.
Most people also know that when the court makes such a decision, it issues an opinion that explains the reasoning of the justices leading to the decision. The reasoning in the opinion is considered a precedent for lower courts and future Supreme Court decisions, meaning that their rulings on similar legal disputes should follow that same reasoning.
Other nations and some states allow their courts to answer questions from lawmakers in advance about whether a law is constitutional, but the U.S. Constitution does not give the federal courts that power.
Article III of the Constitution creates a Supreme Court and authorizes Congress to create lower federal courts. Section 2 of that article specifies that the power of federal courts extends only to “cases” arising under the Constitution and other federal laws (including treaties) and to various “controversies” (such as between citizens of different states).
This means that the federal courts do not have the power to decide issues that don’t involve federal law and, importantly, that do not involve an actual dispute between parties representing different sides of a controversy. This prevents the courts from acting as a super-legislature, essentially vetoing statutes or actions that a majority disagrees with by keeping them from going into effect.
As this limitation is understood, a court can only rule on the constitutionality of a law when someone is actually impacted by the enforcement of the law because then there will be an actual “case” or “controversy” for the court to settle. Mere offense at or worry about the potential effect of a law is not enough to allow the courts to rule.
This, of course, could create a tricky situation. Would it mean that a person has to be fined or go to jail or suffer in some way because of the law before they can challenge it? Not necessarily. An imminent threat of prosecution or a specific delegation of power to specific officials to enforce the law will often be enough, because a person whose actions are in violation of the new law can assume that law will be enforced against them.
In fact, before such a law goes into effect, it is common practice for the person expecting to be affected to bring a lawsuit asking the courts to enjoin the law, meaning to suspend the law’s enforcement until their argument against the constitutionality or legality of the law can be heard by the courts.
A court will grant the injunction if the party seeking it can show (1) they are likely to succeed in their argument that the law is invalid, (2) they would be irreparably harmed if the injunction is not issued, (3) the injunction would, on balance, create a situation of fairness for both parties, and (4) it is in the public interest.
Without the injunction the law goes into effect.
This does not mean, though, that the case is decided. It just means that the law can go into effect while the challenge to it is ongoing. It could be that the court will later rule in favor of the party that sought the injunction.
That is what we have witnessed with the Texas abortion law. Before that law went into effect, abortion providers asked the federal courts to enjoin the law, and on Sept. 1, a majority of the Supreme Court declined to do so.
Critics of the law, including a number of the justices who dissented in this order, believe the law is clearly unconstitutional because it limits the right to abortion. (That claim and the controversy will be addressed in another post.)
The majority of justices, however, felt there were procedural issues they would need to resolve before the question of the law’s constitutionality could be addressed. They noted that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” Since this particular law does not specify who will enforce it, this will create a hurdle to challenging the law.
The majority did say that its order “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
Understanding the court’s role can clarify many misunderstandings. Though the courts are important, they are limited in what they can do – and remembering this might decrease some of the more extreme reactions to decisions.
Even though the Supreme Court does not resolve a large proportion of the cases that are presented to it, the decisions it does issue reverberate to affect many other disputes through the principle of precedent. Its decisions on a handful of cases can, over time, expand and contract the rights of the entire nation.
For many voters, 2020 may have been their first experience with voting by mail. However, VBM in both the United States and Utah specifically is not new. In America, VBM has a history that spans centuries.
The judiciary branch is designed as a responsive, not proactive, branch of government. The court can’t tell Congress not to pass an unconstitutional law or tell the president not to issue a legally invalid order. It must wait until after those actions take effect and someone challenges them.