The Separation of Powers”in the United States Constitution and the assignment of duties by each branch has been stood on its ear in the last twelve months or so. The “checks and balances” intended by the framers of the Constitution envisioned three branches of government, Article I (congress), Article 2 (executive branch) and Article 3 (judiciary). Each branch was given specific duties and oversight to a certain degree over the other two branches. The problem has become that the Article 3 judicial branch has overstepped its bounds and is now presuming to have legislative powers, primarily because the judiciary has decided to become political.
Probably the first indication that the judiciary was willing to get into the political arena was the ruling that the Civil Rights Act of 1964 was authorized by the Commerce Clause of the Constitution. That was a stretch in my opinion, but a needed ruling to frame the social and moral compass of our society. I am certain that the “Founding Fathers” could not envision the way the Constitution would be further politicized two hundred years later. Cases in point: (1) courts have ruled a private baker could not refuse to sell a cake to a gay couple; (2) states may not restrict public gender restricted restrooms to birth gender; (3) the Federal Government may not cut off grants to states because those states refuse to comply with federal regulations; or (4) cities have the right to refuse to enforce federal law.
Apparently, litigants have decided to go to court when they don’t or can’t get satisfaction from the Federal legislature. For example, states are suing the Federal government claiming tax revisions that negatively affect state finances are unconstitutional. States are suing the Federal government over immigration reform, claiming the negative affect on their access to illegal immigrants is unconstitutional. States are suing the Federal Government to revoke Obamacare. The problem is that the judiciary not only doesn’t dismiss these claims, but grants injunctions until the Court can figure out whether a claim exists. Even worse, that issue will probably have to go before the US Supreme Court before it is finally decided, years after the Courts intervened.
There is a fundamental difference between people petitioning the courts for help from an unconstitutional statute and people petitioning the courts for relief from a law they don’t like. Obviously, just because someone doesn’t like a law or ruling doesn’t make it unconstitutional. Unfortunately, the Courts have become more and more a sympathetic ear for the latter. As in the case where States are suing the Federal Government to revoke Obamacare, it would certainly seem that the States are attempting an end run around the legislative process. This flies in the face of the Separation of Powers. However, until the Judiciary says “enough”, this blurring of Constitutional duties will continue.