On the three branches of government

"This is not a solid decision. This is a decision that looks like it’s based more on policy than on constitutionality. There are many, many flaws.” 
 ~Alan Dershowitz, Professor Emeritus, Harvard Law School

“I’m not sure [the government’s position] would have been so easily rejected had it been advanced on behalf of a different president.  Courts tend to defer to the executive on national security issues.  But, it’s tough to convince a court to [trust] the president’s judgment when that judgment is fundamentally suspect.  In short, this might have worked if the president were not a tantrumming preschooler”

 ~Comment seen on Facebook

In this country we have 3 branches of government, each with a distinct role.  While they of course interact and become intertwined, the primary roles are as follows:  The legislative branch makes the laws; the executive branch enforces the laws; the judicial branch interprets the laws.   Sadly, just as some have looked to the executive branch to selectively enforce laws based on individual views of what those laws should be, now many seem to be looking to the courts to make our laws and our policy rather than to simply interpret them.  As reflected by the above Facebook comment along with the astonishing jubilation over the Ninth Circuit’s opinion yesterday, many seem to be perfectly fine with courts allowing personal judgments and feelings to color their decisions.  This is not OK.

Our system of government works in large part because we have 3 branches of government each with its own functions.  These create the checks and balances that we used to learn about when civics and government were a required part of every child’s education.  Those checks and balances are important.  We elect our lawmakers believing that they will enact laws that will reflect the will of the people who elected them.  Those laws will be driven by underlying policies.  We elect the president whom we believe will staff the executive branch with people who will enforce the laws that are enacted.  Of course the president will have some effect on what those laws are, in part through his interactions with the legislative branch, in part by his exercise of veto powers, etc.   But, once we have the laws, we have a right to have the executive branch enforce those laws in an unbiased and unselective fashion.  That is, we do not expect the executive branch to enforce only those laws it likes or ignore those which it does not.  We look to the courts to first and foremost determine if the laws that have been enacted are constitutional and legal.  The courts will interpret the laws for us so that we fully understand their meaning.  But it is not the job of the courts to make the laws.  Interpretation means explanation or clarification; it does not mean creation, reinvention, disregarding or overlooking. 

When one branch of government tries to work outside of its designated role, when it tries to take on the role of one of the other branches then we are all in trouble.  We may be delighted momentarily or we may be unhappy, taking our dislike out on the current actors; but, regardless of one's position, the damage goes far beyond the moment.  We must look beyond the current individuals that make up the institutions of our government.  Delight that one branch of government acts outside of or in a way not consistent with its role is essentially delight that our system is not working.  Without the three branches and the checks and balances that their designated roles provide, we are without the freedoms and protections that we enjoy and for which the United States of America stands.  There is probably something wrong if we are always delighted by our government, just as there is probably something wrong if we are always displeased.  Our government works because no one individual nor one institution nor one branch has all the power.  Our system forces compromise and understanding.  When we try to conflate or are simply delighted with the conflation of the three branches into one or the confusion of their separate roles, we lose those checks and balances that were so dear to our founders and which are the skeleton that supports our way of life.

So, when a branch of government takes on an inappropriate role, (whether it is the legislative branch not serving the people by whom it was elected, or the executive branch not enforcing laws it dislikes or enforcing them selectively, or the courts replacing personal feelings and legislative urges for their role as interpreters) rather than cheer, be alarmed.  Do not stand for it.  Speak out and demand that our government function as designed, regardless of whether the current action is or is not to your liking.