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Two Court Cases Remind Us That Ours Is Not An ‘Instant Grassification’ Constitution (Forbes.com) June 28, 2016

Posted by daviddavenport in Op/Eds, Politics.

As I drove down a California freeway, I saw a truck hauling sod to someone’s new yard.  But it was the sign on the truck that really caught my attention:  “Instant Grassification.”  Although we live in an instant gratification society, that is precisely the opposite of what the founders sought to establish in our Constitution.  Instead, they wanted the “cool, deliberate sense of the community” over time (Federalist 37, 51, 63) to be the governing principle.  To accomplish this they set up checks and balances and separations of power to be sure no one part of government could rise up and unilaterally assert control.

Two federal court cases in two different parts of the country reaffirmed last week that the separation of powers doctrine is still alive, if sometimes slow to assert itself.  A federal judge in Wyoming ruled that the U.S. Department of the Interior had not been given the power to regulate fracking on federal lands as it had sought to do.  And the U.S. Supreme Court, by virtue of a 4-4 tie vote, let stand a decision of the U.S. 5th Circuit Court of Appeals that President Obama does not have the power to unilaterally allow millions of those in the country illegally to remain.  In each case, the courts said, only Congress could authorize those actions.  Like the wheels of the Gods that grind slowly but fine, the court decisions were a delayed response to earlier action.  For example, President Obama’s key executive order on immigration came in 2014.

In our modern society, the separation of powers doctrine is increasingly unpopular and under assault.  Some argue that it contributes to our present gridlock in government—indeed, Obama had said that the inability of Congress to move on immigration justified his unilateral action.  Sometimes the government is just in too big of a hurry—Obama has used executive orders to kick off new domestic initiatives on gun control, immigration and other hot button issues of the day.  Of course the purpose of executive orders is to “execute” legislation passed by the Congress, not to initiate new federal policies.  Some even argue for a new constitutional convention to peel away these so-called antiquated protections.

But these essential questions about federalism ought always to be asked before the government acts:

  1. Is this a matter for government, as opposed to individual, action?
  2. If so, is it a matter for local, state or federal government action?
  3. And should it be done by the legislative, executive or judicial branches?

Unfortunately, in an effort to provide instant gratification, increasingly the federal government leaps into action first, with the leadership of the President or some federal executive agency.  But that’s not how the system is designed.  It is, as Benjamin Franklin famously said, “a republic if you can keep it.”  It has lots of moving parts and we wait for them to work together, not on their own.

Fracking is a relatively new phenomenon and Congress has not authorized agencies to begin promulgating rules, even for federal land.  On state and private land, we should appreciate the states providing labs of experimentation before we would even consider a federal law.  Not a bad idea to have our policy debates and make inevitable mistakes at a lower level.  And a change in something as basic as immigration policy that affects millions needs action by Congress, not the unilateral decision of one man, even if he is the president.

With Hillary Clinton favoring a larger federal government doing more things, and Donald Trump showing little appreciation for constitutional processes such as checks and balances and separations of power, I’m nervous that our instant gratification society will overtake the cool, deliberate sense of the community.  And with an open seat on the Supreme Court, I fear that the corrective we saw in two federal courts last week will be weakened.

To read the column at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2016/06/28/two-court-cases-remind-that-ours-is-not-an-instant-grassification-constitution/#61962bb14280

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