The framers of the constitution believed that the best way to prevent the rise of tyranny is through the separation of powers. They envisaged a government with three independent branches with a system of checks and balances. These checks and balances allow each of the branches to influence the others in an orderly and predictable manner. The judiciary on its part, has the role of interpreters of the law and in extension, the power of judicial review meaning that it can overturn statutes it deems unconstitutional. It has on occasion exercised this power to interpret, pronounce and execute the law to keep check on the other arms of government. Regardless of the correctness or leaning, the rulings of the Supreme Court are often significant as they shape the law, government and the history of the nation. There is, however, the question of how much power is afforded to the judiciary in checking other arms of government and whether there exists a limit to this power.
All branches of government possess several types of power; Expressed powers, which are powers explicitly listed in the constitution; Implied powers, which are powers not listed in the constitution, but necessary to carry out expressed powers; Inherent powers which are powers inherent to all governments. In upholding the constitution, the courts always uphold the expressed powers. They, nonetheless, require to interpret the law in order to determine the legality of most of the implied and inherent powers as exercised by the executive and legislative branches. The problem with this, as most argue, is that as the final arbiters on each decision involving presidential and congressional power, judges often become “the little kings, they so often remind the president he is not” as Madison put it in Marbury v. Madison case of 1803. The question on limits has become particularly important due to the severe erosion of the traditional constraints on judicial power. Some argue that this judicial supervision may make it difficult for the government to carry out its duties especially in emergencies and war.
One of the most important roles of the courts is to adjudicate the Constitutionality of Congressional acts. The authority of the courts to strike down acts of congress as unconstitutional goes back to 1803 in the landmark case of Marbury v. Madison, where the US Supreme Court first declared an act of Congress unconstitutional. By exercising its implied powers, the judiciary established the doctrine of judicial review and formed one of the basis of U.S. constitutional law. One of the ideas of our political system is that judicial arm is the last word on constitutional law. But every now and then, Congress has acted on the courts interpretations of law by amending or re-enacting legislations to clarify its intended meaning. While it cannot technically overrule the Supreme Court, Congress can take action to lessen or to an extent, negate the effect of a court ruling. It can therefore render a court’s interpretation of the law obsolete and pass a new law or amend the existing law. The Civil Rights Act of 1991 is a prime example of such times when the legislative arm has gone on to modify exciting laws to counter a series of court rulings. In the preceding rulings, an employer could escape liability by proving that a discriminative firing had business justification. This was seen as limiting the rights of employees who had sued their employers for discrimination.
The judiciary has severally struck down congressional acts. One example is the United States v. Lopez of 1994. The Supreme Court rendered the Gun-Free School Zones Act of 1990 unconstitutional for overstepping the congressional boundaries under the Commerce clause. The Act had prohibited gun possession in local school zones. Alfonso Lopez Jr., a high school student, was convicted by a district court of possessing a concealed weapon in school. The fifth circuit of Appeals reversed the ruling which was thereafter appealed by the government to the Supreme Court. The Supreme Court reviewed the case and ruled that the act used to convict exceeded the limited powers of congress under the constitution rejecting the government’s argument that trade of weapons and associated illicit activities affect interstate commerce, regulated by Congress under the commerce clause. Following the court’s decision, Congress rewrote the act with a requirement that the law only applied to guns that had some connection to interstate commerce and were near schools.
Congress also has a constitutionally granted authority of jurisdiction stripping. U.S. Const. art. III notes that “judicial power shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” It also notes that the Supreme Court’s appellate jurisdiction is subject to “…such Exceptions and under such regulations, as Congress shall make.” Consequently, Congress determines which courts will hear certain cases. There have been several attempts for judicial stripping advanced in Congress though they rarely are enacted into law and have never eliminated the power of the Supreme Court to review particular areas of law. An example is the military Commission Act of 2006 which sought to bar federal courts from reviewing Guantanamo detainee cases under the Writ of Habeas Corpus. This was, however struck down by the Supreme Court as unconstitutional. The power of judicial stripping is therefore seen as more of a question of judicial federalism rather than a way for Congress to overrule court decisions.
The judiciary also reviews presidential power from time to time. They more often than not uphold the presidential power, especially in areas of foreign policy, war and emergency powers. When called upon, they can however, act and limit presidential authority. An example is in 2001 when then the Bush administration decided that some captured terrorists were to be treated as enemy combatants without legal rights, lawyers and to never have a day in court. In the case Hamdi v. Rumsfeld of 2004 where a Taliban fighter, Hamdi, was incarcerated and denied civil rights despite being a US citizen born in the US, the courts placed a classic institutional and political check on the president’s effort. Hamdi was to be tried before a military commission created by a 2002 presidential order. The US government argued that it had the right to detain enemy combatants indefinitely for purposes of interrogation and that separation of powers prevented the judiciary from hearing Hamdi’s case. The Supreme Court ruled against the military commissions set up by the administration claiming they violated the detained suspects’ rights provided for in the Geneva Convention and the US code of military justice. The ruling established several important legal precedents regarding due process and clarifying nature of executive power over enemy combatants. After the ruling, in 2006, Congress and the executive enacted the Military Commissions act.
What is clear is that the judiciary plays a prominent role in constitutional law and it is only limited by its interpretation of the law. The judicial arm, nonetheless, is reactive rather than active. It must wait until a case is brought before it before it can initiate litigation. This is a major limitation to the court’s duty of checking the other branches of government. The Supreme Court can only act to reign in power of the executive or legislative when there is an aggrieved party. Furthermore, even after enactment of a law, the courts will not have jurisdiction over its constitutionality until after the law is applied. The courts’ power is limited by three doctrines; (i) ripeness: The judiciary cannot offer advisory opinions and can only act on a controversy (ii) political question: The question of whether the court the appropriate forum in which to hear the case, and (iii) mootness: Is the matter of practical significance or merely academic? The question of how what power the judiciary has in checking the other branches and whether this power has limits will always remain a topic of debate.
- Ginsberg, B. (20161221). We the People (Eleventh Essentials Edition), 11th Edition. [Chegg].
- Fisher, L. (2015, September). Presidential Unilateral Actions: Constitutional and Political Checks. In Congress & the Presidency (Vol. 42, No. 3, pp. 293-316). Routledge.
- Shmoop Editorial Team. (2008, November 11). Checks and Balances.