Doug Mills, Pool The New York Times
President Donald Trump talks to Supreme Court Chief Justice John Roberts while leaving the House chamber after giving his State of the Union address to a joint session of Congress, Tuesday, Feb. 5, 2019 at the Capitol in Washington.

The separate and distinct powers provided to each of the three branches of government detailed in the Constitution have been twisted and torqued, abdicated and amassed, undermined and absconded by overreach. We have seen flailing gyrations in recent days with all three branches — and the people within them — along with everyday citizens once again looking for the judicial branch to show up in superhero “Justice League” capes to save the country.

On Feb. 15 President Donald Trump spoke from the Rose Garden and summed up the current state of the government. He said that Congress had once again failed to do its job, that he was signing an emergency executive order to deal with the crisis at the border and that he expected his opponents to file a lawsuit that would ultimately end up in the Supreme Court — where he hoped to win.

The pattern the president described isn’t new to his administration or to the current battle over border security and government funding. Sadly, it has become the new normal in Washington.

For decades Congress has been abdicating its proper authority to the executive branch. Many question why senators and representatives from across the political spectrum would give away the power and leadership authority bequeathed to them in the Constitution. The answer is simple — reelection.

Congress has been passing beautifully named bills filled with sweeping generalizations that bestow on executive branch agencies the power to write law, establish penalties and play judge, jury and executioner when violations occur. Such a scenario enables members of Congress to point fingers at and place blame on the executive branch and agencies when their constituents are unhappy with burdensome rules and oppressive, overreaching regulations.

The executive branch is all too happy to take whatever power Congress is willing to part with. Presidents of both political parties have pushed the envelope in expanding executive power. Whether it is the agencies that have become estates unto themselves or presidents governing by executive order, the issue, problem and result are the same. The natural byproduct is for lawsuits to begin wending their way through the courts.

The Supreme Court does not have supreme superpowers. However, other government branches and far too many Americans have begun to look at it as possessing such strength. Justices wear robes, not capes, for a reason. They are to judge and interpret, not create and legislate.

Members of Congress regularly vote for legislation knowing the courts will likely have to fix it later. The executive branch likewise issues edicts and regulations knowing it could take years for the problem to move through the courts.

During the Obama administration, the court regularly served as the proper check against the executive branch. Unanimous rulings from the Supreme Court are noteworthy, especially in today’s political environment. But dozens of times, the Supreme Court voted unanimously to strike down excessive use of power on a wide range of issues within President Barack Obama's executive orders. The courts have also served President Trump a number of stiff and stinging rebukes in his first two years in office and will soon be tested by his new emergency order to fund walls and barriers at the border.

It should be noted that the judicial branch is not immune from egocentric power grabs and overreach. Chief Justice John Roberts may have begun to believe he was a superhero when he rewrote the Affordable Care Act, or Obamacare, from the bench not once, but twice, in order to save it. Such a superpower in the judicial branch was never imagined by the framers of the Constitution.

With Congress and the legislative branch abdicating power, the executive branch attempting to amass it and the judicial branch regularly swooping in, in superhero fashion, it should surprise no one that the confirmation of judges to the Supreme Court and to lower courts has become the place for white-hot political battles. The courts are currently where the political action is taking place. Who sits on a judicial bench for such political battles matters far more than perhaps it should.

I have seen organizations, institutions and politicians across the political spectrum be more focused on the lawsuit they will file, if they fail to get what they want, than they are on winning the argument for the hearts and minds of people across the country. If the answer to any possible loss of legislative or executive power and position is to file a lawsuit, America has lost too much.

The current confusion about and obfuscation of roles and responsibilities among Congress, the executive branch and judicial branch is unhealthy, unsustainable and undermines the confidence the American people have in our system of government. It also prevents us as citizens from having the right kind of conversations about critical issues.

16 comments on this story

The solution is simple. Old-school, “Schoolhouse Rock” simple. The legislative branch needs to do its job — write law in a process that is open and transparent, includes rigorous debate, provides opportunity for amendments and compromise and ends with meaningful votes in front of the American people. The executive branch needs to enforce the law. The judicial branch needs to interpret the law. And everyone must stop looking to the judicial branch as some sort of “Justice League” team. Judges interpret the law in black robes — not in superhero capes.