SCOTUS, POTUS usurp powers of COTUS

By Isaac Yetiv, Ph.D.

Isaac Yetiv, PhD
Isaac Yetiv, PhD

LA JOLLA, California — The Founding Fathers in their wisdom made the “Separation of Powers” one of the pillars of American democracy. The US Constitution clearly and unequivocally stipulates that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

There have been historically a few cases when the Executive Power usurped the authority of the Legislative Power , but our current president arrogantly made it a habit and, without hesitation, violated the Constitution when it suited his political aims. Experts have tallied about a dozen of such acts. Here are a few of the most flagrant  and inexplicable unilateral edicts : he unilaterally allowed one-year grace period and delayed implementation of employer mandate (Obamacare) ; he unilaterally waived the requirement of work for receiving welfare (1996 law) ; he unilaterally provided federal benefits to illegal aliens and granted deferred action on deportation that favors four to five million illegal aliens.

But last week, surprisingly, the Third Power, the Judiciary incarnated in the US Supreme Court, did the usurpation , again making the Congress an empty and irrelevant vessel. Five hundred and thirty five elected officials,and  thousands of  staff , whose cost to the taxpayers reaches hundreds of millions of dollars, are now idle, enjoying the dolce vita and waiting their turn to join the army of lobbyists that will make them very wealthy. President Obama, and now SCOTUS, have nullified the US Congress , the American people’s elected representatives.

  1. The Obamacare case:

Twice, the Chief Justice bailed out and rescued “Obamacare.” He did it by resorting to some capricious and arbitrary semantic prestidigitation that allowed him to rebaptize English words in arrogant disregard for dictionary and thesaurus. In the first case, some time ago, he shockingly insisted that “penalty” is not “a punishment for  crime or offense,” but it is a “tax. ” In the second decision (June 2015), the  same magic taught us that “the states” didn’t mean each and every one of the 50 states but an abstract concept of the “State,” one state, and other nonsense. The result is that the SCOTUS rewrote the law as produced after 18 months of debate in the Congress. They legislated from their high bench ,changed the law, and again saved Obamacare from disintegration. It was a 6-3 decision , made by nine non-elected non-legislators lawyers. This means that two persons can impose their points of view on 320 million Americans, without checks-and-balances, without appeal. That is too much power, the very thing that the Founding Fathers wanted to avoid.

Thus, Obamacare became, as Justice Scalia called it in his dissent, “Scotuscare.”

2. Gay marriage:

The Supreme Court also ruled that  gay marriage is legal in all fifty states. The vote was even narrower, five to four. That means ONE person has imposed his opinion on 320 million Americans. This is not only a usurpation of the Legislative Power authority, but an absurd and dangerous violation of the Constitution which the Justices are sworn to uphold.. And there is already talk of deleterious consequences like the violation of religious liberty , formally granted by the First Amendment, of the millions who oppose the decision.There have been already outrageous cases like that of an Oregon baker who has been fined $ 135,000, and is now bankrupt, because he refused to make a wedding cake for a gay marriage because it would have violated his religious beliefs (it is not that he refused to sell them a cake at his store, as some wrongly reported, which would have been discriminatory.)

Whatever one’s position on the issue of gay marriage, it is the prerogative of the elected representatives of the people, in the form of the US Congress or, even better, the states’  legislatures in conformity with the 10th amendment to the Constitution– which requires that functions “not enumerated”  devolve to the states or to the people– to adjudicate this dividing issue. Such a decision would have been more legitimate and accepted, even by its detractors, as the will of the people.

Religious belief is not the only cause for objection to same-sex marriage. There is the slippery slope effect: Since the promoters of this innovation base their claim on “equal treatment,”  this may encourage other demands for “equality” such as polygamy or polyandry (one woman marrying many husbands–for the sake of gender equality; and it exists in other places in the world;) menage a trois (two women and one man or vice-versa ; )incest (Caligula marrying his sister Drusilla, and some pharaohs in ancient Egypt,) or even worse demands in the name of equal treatment.

Occam Razor principle teaches that when there are many apparent solutions  to a problem, the simplest one is usually the best. Years ago, I published my “simple” solution to the gay marriage controversy:  Just make marriage a legal contract –which it really is– that binds two individuals as in any civil partnership, and which is none of the business of anyone else. Any couple thus joined will choose to have or not to have a private religious ceremony.

The fiscal advantage that the current law imparts to “married” people will be either extended to all unions, or abolished completely. Thus, as the saying goes, “the wolf will not be hungry, and the sheep will remain whole.” And to avoid future confrontations , the same law should leave the providers of services, the proverbial bakers and photographers, free to refuse their service if it clashes with the exercise of  religious liberty (First amendment.) After all, it is not life-and-death, they can always go to another vendor.

If proof was needed that the US Supreme Court  is a political institution not much different from the Congress and the presidency, these last events have erased all doubts. And how could they be “independent?” They are appointed by a political president and approved by a political senate, they are known as “liberals” or “conservative.” They are political, but their functions are limited. They , like the President, may not make laws, or change existing laws. In both cases discussed above, they should have decided  to return the case to the legislative bodies where they belong. If they persist in their “usurpation,” maybe the Congress should then act to change the way the Justices are created or , maybe, to make them subject to election by the people, directly or indirectly, or to reconfirmation periodically. The reasons behind the idea of appointing the Supreme Court Justices for life are long gone. In a democracy, no person holding a political position should be appointed for life.

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Yetiv is a freelance writer and lecturer based in the San Diego suburb of La Jolla.  You may comment to him at isaac.yetiv@sdjewishworld.com, or post your comment on this website provided that the comment is civil and that you identify yourself by full name and your city and state of residence.