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August 15, 2005
We’re Too Connected for a Weak Congress
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Cass Sunstein is a Karl N. Llewellyn distinguished service professor of jurisprudence at the University of Chicago Law School and is the author of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," which will be published in August. |
It's hard to answer this question in the abstract, but the simple answer is no. The Supreme Court should not adopt an agenda to "rein in Congress." The Rehnquist Court has invalidated over three dozen acts of Congress, and some of those invalidations are extremely hard to defend. Senator Specter is entirely within his rights to express concern about what the Court has been doing.
Of course it is appropriate for the Court to enforce constitutional limitations, but the appropriate posture, on the part of the Court, is one of humility and modesty in reviewing the decisions of a coordinate branch of government.
Some technicalities: The nondelegation doctrine, said to require Congress to impose sharp limits on the executive discretion, has doubtful roots in the Constitution itself (and it would require courts to assume an exceptionally difficult role). To be sure, the commerce clause doesn't give Congress the power to do whatever it wants. But in an interdependent economy with free mobility, actions in one state (including racial discrimination and pollution) often affect those in other states. Congress is entitled to respond to that fact. Section 5 of the Fourteenth Amendment gives Congress broad authority to enforce that amendment.
Technicalities to one side, the great court of appeals judge Learned Hand once said that the "spirit of liberty is that spirit which is not too sure that it is right." Those who want the Court to adopt an agenda against Congress are too sure that they are right.
Posted at August 15, 2005 01:54 PM