In this second column entry, I would like to bring a similar level of specificity to the separation-of-powers provisions that address the federal lawmaking process. A close look at those provisions indicate that, if the court wishes to better respect the Constitution's design, the court should abandon its practice of regularly treating Congress as if that branch can unilaterally make law.
In this second column entry, I would like to bring a similar level of specificity to the separation-of-powers provisions that address the federal lawmaking process.
A close look at those provisions indicate that, if the court wishes to better respect the Constitution's design, the court should abandon its practice of regularly treating Congress as if that branch can...
Judicial references to "Congress" simply making law are ubiquitous and have been offered by justices of different interpretive stripes.
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In this second column entry, I would like to bring a similar level of specificity to the separation-of-powers provisions that address the federal lawmaking process. A close look at those provisions indicate that, if the court wishes to better respect the Constitution's design, the court should abandon its practice of regularly treating Congress as if that branch can unilaterally make law. Judicial references to "Congress" simply making law are ubiquitous and have been offered by justices of different interpretive stripes.
Let's start with some examples of the phenomenon in question. More recently, Chief Justice John Roberts wrote in Learning Resources v. Trump that "[t]he Government points to no statute in which Congress used the word 'regulate' to authorize taxation." In the same cases, Justice Ketanji Brown Jackson added that "probing Congress's intent is the right inquiry." And in another high-profile example,...
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