Tuesday, September 2, 2014

The broken Congress has given us a hyper-empowered judiciary

Win McNamee

On June 25, the Supreme Court ruled against a company called Aereo in a case that while not super-important on its face has potentially significant implications for the entire cloud storage industry. Back on June 19, in another ruling, the Court substantially restricted the eligibility of software innovations for patent monopolies. And on June 23, it made it harder for the Environmental Protection Agency to restrict greenhouse gas emissions.

These three rulings have two things in common. They're all very consequential for American public policy, and they all have nothing to do with the United States Constitution or the Bill of Rights.

And that's a problem.

What the court was doing in these cases — statutory interpretation — is a crucial part of the judging game. Legislatures write laws, but no legal text is without real or perceived ambiguity. Various entities from the public or private sector will inevitable push the boundaries, exploit loopholes, or otherwise land themselves in gray areas. And it's the job of the courts to sort things out.

But this is meant to be a two-tiered process in which the legislature writes the laws with the aim of achieving sound public policy, and then the courts apply the laws with the aim of achieving consistency and predictability. What courts are not supposed to do is deliberately or accidentally become the forum for huge new departures in the realm of policymaking.

And yet in the United States that is exactly what they do — not so much because of the bogeyman of "judicial activism" but because of the collapse of the legislative process.

Reactions to the Aereo ruling were varied, but absolutely nobody said "regardless of what the courts decide, Congress can always rewrite the relevant laws to sort out any problems." Because everyone takes for granted that in this day and age Congress can't rewrite the relevant laws. It can't clarify the legality of Aereo's repacking of over-the-air television broadcasts, it can't clarify the patent status of software, and it certainly can't clarify the scope of the EPA's authority over climate pollution. Congress can name post offices and not much more.

The conventional term for the paralysis of the legislative branch is gridlock. But while it's true that it's exceptionally difficult for a bill to become a law — the president can veto it, 41 Senators can filibuster it, a bare majority of the majority caucus in the House can prevent it from coming to the floor, and that's leaving aside all manner of committees and political delays — it's not the case that policy stops changing. The judicial branch, through its power of statutory interpretation, is constantly changing the lived-experience of American public policy even if the legislative text stays constant.

And yet the judicial branch is not properly equipped to make broad evaluations of the policy merits of different approaches.

It's not staffed properly to consider what intellectual property policy ought to look like, it's not subject to the normal feedback mechanisms of democratic politics, and it lacks the legitimacy of a directly elected branch. Indeed, for all those reasons it's broadly considered inappropriate for the courts to rule on these cases on the basis of policy desirability.

That's fine in a world where we assume Congress will revisit statutes in light of judicial rulings and correct undesirable outcomes. But in a world where the safest assumption is that Congress will do nothing on any contentious issue, it's absurd. The courts, whether they like it or not, are making public policy when they lay down interpretive rulings. Massive status quo bias ensures that whatever they decide is, irrevocably, the law of the land. This is the biggest and least-acknowledged cost of congressional dysfunction in America.

Practically speaking, the power to legislate does not go away when Congress fails to exercise it. Instead, it drifts; first into executive agencies and then over to the judicial system where it is simply exercised in clunky and inappropriate ways. That's why this week's Supreme Court rulings are such a big deal. Rather than being, as they should be, one step in a dialogue between branches of government they constitute an unintended final word by an unelected super-legislature.

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