Supreme Court seeks to rewrite, not interpret, the Constitution
In the U.S. Supreme Court’s most anticipated case of its now concluded term, the justices ruled last week that President Donald Trump cannot unilaterally end birthright citizenship protections enshrined in the 14th Amendment. What should have been beyond debate instead survived by a single vote
On a host of other questions, both this week and in those preceding it, the court reshaped government in ways the Founders could never have imagined, obliterating the notion that it merely “calls balls and strikes,” as Chief Justice John Roberts once famously said. No, this court wants to swing the bat, and did so this year mostly to the nation’s detriment
The court last week struck down Trump’s attempt to severely narrow the scope of the 14th Amendment by ending birthright citizenship. Though the vote was 6-3, Justice Brett Kavanaugh’s concurring opinion concluded that laws passed by Congress, not the Constitution, rendered the executive order invalid
Taken in sum, the opinions reflect a 5-4 vote to uphold the 14th Amendment, despite the fact that its language couldn’t be clearer. It forms the constitutional foundation for citizenship that nearly all Americans claim. The vast majority of citizens did not go through the naturalization process and swear an oath of allegiance. They rely on the fact they were born to citizens, or in the United States, as proof they are Americans
Trump’s executive order would have altered the interpretation of the 14th Amendment and overturned decades of established legal precedent. If upheld, the executive branch would be able to pick and choose who qualifies for full rights under the Constitution and who does not, meaning the very definition of citizenship could conceivably change with every presidential election
Yet, what should have been a 9-0 decision instead saw four members of the court concluding the 14th Amendment means something entirely different than what Congress and the courts have endorsed for 160 years
It is the latest act by a court eager to rewrite, rather than interpret, our governing documents
On Monday last week, Roberts and the majority concluded in Trump v. Cook that some aspects of the federal government — namely membership on the Federal Reserve Board of Governors — should be protected from partisan and political influence. The court insulated those appointees from being removed without cause
Yet, on the same day, Roberts penned the opinion in Trump v. Slaughter that a president should enjoy sweeping powers over roughly a dozen other executive agencies. He brushed aside arguments that Congress established them to be independent, and dispatched the 91-year-old precedent established in Humphrey’s Executor v. United States that limited a president from removing agency heads at will
Those decisions might make sense were decades to pass between them. Instead they were issued on the same day, from the same court and by the hand of the same chief justice
The birthright citizenship case, like those involving the president’s ability to fire agency heads and appointees, will be framed through the lens of Trump, since he now sits in the Oval Office. But they are much larger than one president
More accurately, they are representative of a court that has repeatedly advanced the supremacy of the executive branch at the expense of the legislature. In response, Congress has repeatedly failed to assert itself, seemingly content to see its authority diminished
That, of course, is what the nation’s Founders feared. They declared independence to free themselves from a monarch, and designed a system of government that intended to guard against an imperial executive. They instituted checks and balances to restrain each branch, but primarily vested power in an elected legislature, so the public could exert its will on the decisions made by the federal government
The court’s penchant for tossing away or ignoring established precedent is made worse by justices who refuse to uphold parts of the Constitution as it is written. The 14th Amendment remains the law, and for that we should be grateful. That it did so by the slimmest of margins should alarm us all
This editorial was published by The Virginian-Pilot and distributed by Tribune Content Agency
