Even once President Donald Trump is removed from office, and Democrats regain unified control of Congress and the White House, they will have to contend with the army of new right-wing federal judges Republicans have installed at every level, including two on the Supreme Court. Senate Majority Leader Mitch McConnell (R-KY) made confirming judges to the seats he held open in the Obama years a top priority, because he knew these judges could legislate from the bench and cancel the policies of any future Democratic lawmakers the people elect, from universal health care to climate action to gun policy.
But as Justin Slaughter wrote for The American Prospect, a Democratic Congress can prevent right-wing jurists from overturning legislation, if they plan ahead and draft their bills strategically. "There are steps that Democrats can and should take to mitigate the damage that the new, very conservative Supreme Court can do to Democratic laws and policies," he wrote. "And it won’t take threatening to pack the Court, either."
First, Slaughter wrote, Democrats should start writing bills from the assumption they will face legal challenges.
Second, all bills should contain "severability" clauses and redundant mechanisms that ensure a successful legal challenge only strikes down one part of the law.
Third, Democrats should make sure any measure for raising revenue is identified as a "tax" so that it falls under one of Congress' broadest legislative powers.
Fourth, bills should take effect more quickly, so that judges can only hear cases after the laws are in place and benefiting people.
Fifth, bills should include a provision that any legal challenge is fast-tracked to the Supreme Court, increasing the odds that Democrats will still control Congress when the case is heard and can pass follow-up laws to fix any statutory rulings from the justices.
Sixth, Democrats should devolve less rulemaking power to federal agencies, as the justices are likely to curtail precedents that allow this.
And seventh, in order to do all this, Congress should hire more staffers and reopen analytical offices like the Office of Technology Assessment, which the GOP shut down in 1995.
"These ideas are not a panacea," said Slaughter. "In the short term, legislative gridlock could force the next Democratic president to rely more on rulemaking, making progress with existing laws already passed by Congress. And for the immediate future, Democrats have to accept that the Court will be a harsh judge of their laws and policies from now on, and adapt to that new reality. Frankly, it’s long overdue; the Court has asserted its authority brazenly for some time."
"So, if you’re worried about the Court, the best advice I can give is to go and volunteer some time knocking doors this fall, phone your senators about the Court, and take some action," concluded Slaughter. "Ultimately, it all comes back to the ballot box."
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