ICYMI: Senator Coons, legal experts warn against Supreme Courtattempts to strip power from Congress in new essay

"The framers never intended the legislative branch to bend to the will of the president or the court."

WASHINGTON - In case you missed it, U.S. Senator Chris Coons (D-Del.) published a joint op-ed in SCOTUSblog yesterday with Albany Law School Associate Dean Ray Brescia and David Beier, former Chief Domestic Policy Adviser to Vice President Al Gore and former House Judiciary Committee counsel, warning that the Supreme Court under Chief Justice John Roberts is systematically stripping authority from Congress, weakening the power of the American people's directly elected representatives to write the laws, allocate funding, and set federal policy.

"Every day, Americans are witnessing the most significant expansion of presidential power in modern times," the authors wrote. "Just as important, and less obvious, is the other significant shift that is occurring in our system of government: the Roberts Supreme Court is systematically stripping away power from Congress, the directly elected representatives of the people."

Senator Coons, Beier, and Brescia look back at the court's decisions from recent years, from attacks on the Voting Rights Act in Shelby County v. Holder andLouisiana v. Callais, to overturning Chevron deference and giving federal judges greater authority over complex regulatory issues in Loper Bright Enterprises v. Raimondo, to allowing the president to fire the heads of previously independent agencies like the FTC in last week's Trump v. Slaughter decision. While these decisions have garnered mass outcry for their conservative lean and their embrace of the "Unitary Executive" theory that has given President Trump vast new powers, less attention has been paid to where this power has been drawn from. As the authors note, many of these new powers that the court has bestowed on itself and the executive branch have been taken away from Congress; in many cases, Congress has held these powers for decades.

"Taken together, these efforts are a transfer of power from the first branch of government to the third within our constitutional system," they wrote. "While the framers conceived of three, co-equal branches, what the court has done is to declare that all branches are equal, but some branches are more co-equal than others."

Senator Coons, Beier, and Brescia also point to Congress' history of responding to Supreme Court decisions that narrowed federal law with new legislation, including the Pregnancy Discrimination Act of 1978, the Civil Rights Restoration Act of 1987, and the Civil Rights Act of 1991. They argue Congress must reassert its constitutional oversight role by passing stronger legislation such as the Supreme Court Ethics, Recusal, and Transparency Act and use its annual budget authority to give more specific guidance to agencies.

"While the Supreme Court has increasingly centralized power at Congress' and everyday Americans' expense, this trajectory is not inevitable," they concluded. "As our nation marks its 250th anniversary, Congress must find the political will to restore the constitutional balance of power. The framers never intended the legislative branch to bend to the will of the president or the court. By executing rigorous oversight and aggressively asserting its authority over war powers, spending, and civil rights, at a minimum, Congress can - and must - reclaim its rightful constitutional role."

From SCOTUSblog: The Supreme Court's quiet coup

Every day, Americans are witnessing the most significant expansion of presidential power in modern times. Just as important, and less obvious, is the other significant shift that is occurring in our system of government: the Roberts Supreme Court is systematically stripping away power from Congress, the directly elected representatives of the people.

This erosion of congressional authority is not happening by accident; it is the direct result of steady, calculated intrusions into Congress' constitutionally designated role - to write the laws, allocate funding, and set federal policy for the nation.

What the court has accomplished is something subtler and potentially far more permanent than a sudden coup: it has radically narrowed Congress' ability to shape how laws are interpreted, implemented, and defended after they are enacted.

…

Read the full op-ed here.