Gorsuch Knows “Three Co-Equal Branches” Is a Myth

In Title 42, Gorsuch plays the little boy who declared the emperor was wearing no clothes. Now, if only he’ll be consistent in applying his new understanding of the Court beyond just immigration...

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Apparently trying to prove the old cliché about broken clocks and twice a day, Supreme Court Associate Justice Neil Gorsuch defied his 5 Republican colleagues on the bench and authored an honest and factual dissent in this week’s Title 42 case.

He came right out and said the Supreme Court shouldn’t be making policy.

It all started when Section 71.40 of Title 42 of the Code of Federal Regulations was written into US policy by Trump’s HHS Secretary Alex Azar on September 4, 2020.

Titled “Suspension of the right to introduce and prohibition of the introduction of persons into the United States from designated foreign countries or places for public health purposes,” it expands previous public health laws to let the HHS Secretary block asylum seekers and immigrants from certain countries into the US because those countries represent a source of infectious disease that may be dangerous to Americans.

At that time, September of 2020, the pandemic was at its most full-blown and there was no vaccine or effective drug to stop Covid, so the Trump administration could at least use the fig leaf of public health law to prevent people from entering the US to apply for asylum.

Now the pandemic crisis is largely over and the Biden administration would like to go back to using old-fashioned immigration law to filter and process asylum applicants; Republicans, refusing to negotiate any good-faith changes to immigration law, have asked the US Supreme Court to force the administration to continue using Title 42 to keep people from entering the US.

This April, the Biden administration said they were going to stop using Title 42 to block immigrants and asylum seekers, going instead with normal application procedures. Arizona and nineteen other Red states sued and, as Gorsuch’s dissent summarizes:

“From March 2020 to April 2022, the Centers for Disease Control and Prevention responded to the COVID–19 pandemic by issuing a series of emergency decrees. Those decrees—often called ‘Title 42 orders’—severely restricted immigration to this country on the ground that it posed a ‘serious danger’ of ‘introducing’ a ‘communicable disease.’

“Fast forward to a few weeks ago. A district court held that the Title 42 orders were arbitrary and capricious, vacated them, and enjoined their operation. On appeal, Arizona and certain other States moved to intervene to challenge the district court’s ruling... The D. C. Circuit denied the States’ motion. In response, the States have now come to this Court…”

Five Republican justices on the Supreme Court agreed with Fox News and governors Abbott, Ducey, and DeSantis (among others), telling the Biden administration it couldn’t drop the Title 42 public health prohibitions on movement across the border until next year, and only then after the entire Court hears and rules on the case.

In an unusually lucid dissenting opinion, Neil Gorsuch wrote — with the concurrence of Democratic Justices Sotomayor, Kagan, and Jackson — that Title 42 was being used to block immigration in the name of a Covid emergency that’s now over.

“Even if at the end of it all we find … that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed. …

“And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life.”

Gorsuch then gets to the heart of the matter: if the governors of Texas, Arizona, et al want the federal government to block asylum seekers, they need to get an actual law passed through Congress that will do the job.

Determining immigration and asylum policy for the United States is not, Gorsuch wrote, any of the Court’s business:

“The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. … But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.

“We are a court of law, not policymakers of last resort.”

If only Gorsuch were following his own advice on pretty much every other issue.

In just the past year, Gorsuch has joined his five hard-right activists ruling to:

— End the 6th Amendment right of prisoners to challenge convictions when their lawyers were demonstrably corrupt or incompetent (Shinn v Ramirez). In her dissent, Justice Sotomayor wrote, “The Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.”

— Further gut Americans’ right to vote. In 3 separate cases, Merrill v Milligan, Wisconsin Legislature v. Wisconsin Elections Commission, and Ardoin v. Robinson the six rightwing justices endorsed three separate Republican gerrymanders and voting maps in Wisconsin, Louisiana, and Alabama that were each unabashedly based on efforts to enhance the electoral power of white voters.

— Remove from US citizens who move to (or live in) Puerto Rico the right to receive certain Social Security benefits in their US v Vaello-Madero case. Whacking the rights of over 300,000 Americans living in PR, the six Republicans on the Court ruled that only Congress could fix the damage they themselves were doing. The problem with that, as Justice Sonia Sotomayor pointed out in her dissent, is that because PR isn’t yet a state and has no member of Congress to fight on their behalf the Court was simply “punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment.”

— Take away your Miranda rights to remain silent, avoid self-incrimination, and know you have access to a lawyer. Americans cannot, the 6 “conservatives” on the Court ruled in Vega v. Tekoh, sue police officers who fail to tell them their Miranda rights.

— Eliminate many non-citizens’ rights under the Constitution when abused by the federal government. While the Constitution refers to “persons” rather than “citizens” in most critical places (like the 14th Amendment guaranteeing equal protection under the law), Republicans on the Court decided in two cases, Garland v. Gonzalez and in Johnson v. Arteaga-Martinez, that noncitizens often are not entitled to bond hearings or class-wide injunctive relief when screwed by the feds.

— Rip away 4th Amendment privacy rights against unreasonable search and seizure for all persons living within 100 miles of an ocean or our borders with Mexico or Canada (that’s two out of three American citizens — even here in Portland, I’m within 100 miles of the Pacific Ocean). In Egbert v Boule, the six rightwingers on the Court ruled that border patrol and other federal officers can search you, your home, or your vehicle for any old reason they want because you live in the vicinity of a border or ocean and they consider you suspicious. No warrant necessary anymore.

— Give police officers who use excessive force immunity from accountability. In Rivas-Villegas v. Cortesluna and City of Tahlequah, OK v. Bond the Court upheld its own invention, the doctrine of “qualified immunity,” that makes it almost impossible to sue cops when they wail on you or even kill you (in the Tahlequah case they killed a man in his own garage) for little or no reason.

— Kill the power of the EPA under the Clean Air Act to regulate carbon pollution or protect communities from having their water supplies poisoned by industry seeking profits. West Virginia v EPA ended that agency’s power to regulate carbon dioxide in our atmosphere, and Louisiana v American Rivers handed polluters, overturning 50 years of precedent, the power to overrule states’ and tribes’ rules against pollution of their waterways.

In every one of these cases, Gorsuch went along with the Court exceeding the authority given it by the Framers of the Constitution. Every decision above defies the logic he uses to reject Title 42.

In this Title 42 case, Gorsuch is right that the Supreme Court was not intended to be a policy-making body of our government. To paraphrase Patrick Henry at the Virginia constitutional ratifying convention of 1788, they may search that paper [the Constitution] and they will not find it.

The power to overturn laws passed by Congress and signed by the President was not granted by the Constitution: it was taken by the Court itself onto itself in 1803 in the case Marbury v Madison.

But even that decision, in which the Court struck down part of the Judiciary Act of 1789, didn’t claim to give the Court the power to write or delete policy for the United States.

In fact, Chief Justice John Marshall himself wrote in Marbury:

“The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.”

That power to determine policy for the government is given, by the Constitution, exclusively to the elected branches: to Congress, with the assent of the President (unless his assent is withheld by a veto, which Congress may then override).

Chief Justice John Roberts himself once agreed, and wrote about it at length when he was a lawyer in the Reagan administration looking for ways Congress could overturn Brown v Board and Roe v Wade, as I document in detail here and in my book on the Court.

Since Roberts helped George W. Bush with his arguments before the Court in 2000, however, Bush put him at the top of the Supreme Court and ever since he’s been all-in on the Court writing law and second-guessing Congress on policy.

As if to justify their power to lord over America’s people without restraint or oversight, Roberts recently cited the myth of “separate and co-equal branch[es] of government.”

But that’s definitely not what the Founders and Framers had in mind.

In fact, the House of Representatives was intentionally given primacy in the Constitution, as it’s the branch that is directly elected by the people every two years.

All legislation must originate in the House, from laws that define criminal behavior, to raising taxes, to the federal government spending money.

Behind the House in power is the Senate, originally appointed by state governments and now elected to six-year terms. All ambassadorial and senior-level executive branch appointments must be approved by the Senate, along with all treaties.

Together, the House and Senate — the Congress — can override a president’s veto; create or shut down or de-fund any and all departments of government (including the entire US court system); “regulate” the Supreme Court and set “exceptions” to what the Court may rule on; set the pay for itself, the President, and members of the Supreme Court; and overturn Supreme Court decisions either by writing new laws or amending the Constitution itself.

After Congress — which is defined in Article I of the Constitution — comes the presidency, the executive branch of government, defined in Article II (which is half the length of Article I).

The president is subordinate to Congress in many ways: even as the “Commander in Chief” he cannot declare war; that power is reserved exclusively to Congress. His vetoes can be overridden and he can even be removed from office through impeachment by Congress. The Constitution requires him to present himself annually to Congress to explain the state of the nation, an opportunity to ask Congress for things he thinks the country needs that only they have the power to authorize.

Third in line of power and importance in the minds of the Framers of the Constitution is the court system and the Supreme Court. Article III is only a third the length of Article II, and clearly puts the Supreme Court under the control of Congress. Section 2 is unambiguous:

“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

This was no secret to our Founders; they knew it well. In Federalist 51, James Madison proclaims:

“[I]n republican government the legislative authority, necessarily, predominates.”

In Federalist 78, Alexander Hamilton writes:

“[T]he judiciary is beyond compare the weakest of the three departments of power.” (italics theirs)

Search the Constitution, the Federalist Papers, Madison’s notes on the Constitutional Convention, and even the letters and published writings of this nation’s Founders and you will find no explicit reference to Roberts’ mythical “three co-equal branches.”

Just like you’ll not find a single word about the Supreme Court being able to strike down laws or create law or policy from thin air.

In recent years the Supreme Court has legalized bribery of politicians; refused to adopt even a rudimentary code of ethics for itself; and ignored openly seditious and unlawful behavior by its own members and their families. Not to mention exceeding its constitutional authority by inserting itself into political issues with startling regularity.

In this Title 42 decision, Gorsuch plays the role of the little boy who declared that the emperor was wearing no clothes. Now, if only he’ll be consistent in applying his new understanding of the Court’s power across issues beyond just immigration.

(Great resources on this topic include David J. Siemers’ book The Myth of Coequal Branches: Restoring the Constitution’s Separation of Functions, former Stanford Law School Dean Larry Kramer’s book The People Themselves: Popular Constitutionalism and Judicial Review, or my little book The Hidden History of the Supreme Court and the Betrayal of America.)