Courts across the country are abdicating their constitutional duty and permitting the explosive growth of government intrusion by deferring cases to show restraint, a leading attorney said on Wednesday at an event hosted by the Charles Koch Institute.
Clark Neily, senior attorney at the Institute for Justice and author of the new book Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, said most courts—including the U.S. Supreme Court—typically defer cases that involve the powers of other government branches to exercise "judicial restraint." As a result, the Supreme Court has struck down only 103 of the 15,817 federal laws passed between 1954 and 2002, just two-thirds of one percent.
Neily calls this "judicial abdication," or the unwillingness of the Supreme Court to fulfill its constitutional role as an "impenetrable bulwark against every assumption of power in the legislative or executive," as James Madison wrote. He advocates for "judicial engagement" in his book to curb the surge in federal regulations and responsibilities.
"The Framers didn’t expect the other branches to obey the Constitution—that’s why they created the judiciary," said Neily, who argued for the plaintiffs in the District of Columbia v. Heller Supreme Court case that affirmed the Second Amendment right of an individual to possess a firearm.
"The duty lies with the judiciary and they as a system are shirking that duty and have been for some time," he added.
He said the most recent example is the court’s decision to uphold the Affordable Care Act, commonly known as Obamacare.
The court was prepared to strike down the controversial law last year until Chief Justice John Roberts reportedly rewrote the opinion to say its individual mandate, the requirement that all Americans purchase a form of health insurance, was constitutional because it was a tax, not a penalty. The move was seen as an attempt to insulate the court from criticism by Roberts, who is an advocate of judicial restraint.
Neily called the ruling "a preposterous reading of the statute" because the mandate was designed to coax people into buying insurance rather than raise revenue.
The court maintained in its majority opinion that the decision did not represent an expansion of the federal government’s power to regulate interstate commerce.
"The lower courts didn’t get the memo," Neily said.
He noted that in once case, the 11th U.S. Circuit Court of Appeals, the only appeals court to rule that Obamacare was unconstitutional, followed up that decision with a ruling granting the U.S. Department of Agriculture the power to regulate six-toed cats at Ernest Hemingway’s house in Key West, Fla.
The bizarre case involved undercover agents surreptitiously shooting photos of the cats and even an unannounced trip by a federal judge to the Hemingway house, which has been turned into a museum. The court ruled in the end that the cats were covered under the federal Commerce Clause because the museum sold cat-related merchandise—despite the fact that they rarely wandered far from the house and were well fed.
"We appreciate the museum’s somewhat unique situation, and we sympathize with its frustration," the ruling stated. "Nevertheless, it is not the court’s role to evaluate the wisdom of federal regulations."
One reason courts have been less likely to impede the growth of government in the last few decades is their classification of different rights, Neily said. Rights are bifurcated into "fundamental" and "non-fundamental" ones. Non-fundamental liberties, such as private property and occupational rights, are subject to the "rational basis test"—which requires courts to consider every conceivable justification for laws before invalidating them.
Courts’ distinctions have a real impact that boils down to the individual, Neily said, pointing to the 2004 case of Sandy Meadows. Meadows was a widow in Baton Rouge, La., who attempted to obtain a license to be a florist.
She failed the licensing exam five times, which included a written test and the task of making four floral arrangements in four hours. The exams were graded by a panel of working florists, who often rejected their potential competitors.
Louisiana is the only state in the country that licenses florists like doctors or lawyers. The passage rate for the florist exam was 36 percent, compared to 61.5 percent for the state’s bar exam, Neily said.
The Louisiana Horticulture Commission pressured an Albertsons grocery store employing Meadows to let her go because she lacked a license. The store ended up letting Meadows go. Neily’s appeal on her behalf to a federal judge was unsuccessful.
Meadows, unable to make a living, died alone three months later without a car, phone, or electricity.
"This has to change," Neily said. "We deserve better and Sandy Meadows assuredly deserved better."