Throughout the last century in particular, much evil has been done in the service of getting the so-called “right” result more quickly than the Constitutional process would otherwise allow. The Constitution recognizes that certain functions are best handled institutionally by certain parts of the government. Foreign policy, generally speaking, is best handled by the executive, as a single point of contact decision-making process is often called for. Excessive majoritarian fervor is best checked by the judiciary, which is insulated from democratic pressure. But the Constitution expresses a clear preference that most matters of domestic policy lie properly within the purview of Congress, as the most democratically responsive and representative branch of government, and the most likely to accurately reflect national as well as local concerns.
Throughout history, the branch most likely to usurp the power of another has been the judiciary, which has with increasing frequency usurped the proper purview of Congress. It is proper and appropriate for the judiciary to arrest the excessive enthusiasm of Congress which exceeds their constitutional authority; it is improper for courts to implement their own policy when Congress is perceived as acting too slowly. One need only look at the Supreme Court’s muddled and disastrous Eighth Amendment jurisprudence for but one example of the evils attendant in letting the judiciary settle matters that ought to be left to the deliberative process of Congress. Many young conservatives and libertarians seem prepared to ignore this lengthy and well documented history in their support of judicially imposed gay marriage – a legislative solution to the issue, which seems inevitable in any case, could allow for conscience and religious liberty protections for conscientious objectors, whereas a judicially imposed one almost certainly will not.
Nonetheless, having seen the judiciary get away with it for decades without significant pushback from Congress, Barack Obama now seems ready to try his hand at playing Congress with immigration reform. Institutionally, of course, Article I places the prerogative to set a “uniform rule of nationalization” in the hands of Congress, which reflects a clear institutional preference for setting immigration policy in the hands of Congress. And Congress has acted repeatedly on this prerogative, as federal immigration policy constitutes a hefty and lengthy section of the U.S. Code. Nonetheless, Obama seems determined to pretend that there simply are no immigration laws on the books:
Citing his legal authority as chief executive of the United States, Obama said …read more