One of the best parts of law school is reading opinions, dissents and concurrences penned by the Supreme Court. They concisely and, oftentimes, creatively express some of the biggest questions facing our democracy. One that’s come up repeatedly in my Administrative Law class: Did the Constitution create an effective, efficient and energetic government or did it set out a formula for ensuring accountability, adherence to bright-line rules and clear jobs for each branch of government?
You may be inclined to say the Constitution meant to do both. And you may be right. But the questions that reach the Supreme Court often don’t allow for that kind of answer.
For example, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court did not have the luxury of finding the middle ground: Either the Public Company Accounting Oversight Board within the Securities and Exchange Commission was unconstitutionally removed from presidential oversight or it wasn’t.
Though that question may sound drier than the Alvord Desert, its answer boiled down to whether the justices thought the Constitution should be read to allow Congress to create agencies tailored to address modern issues, or if its bright lines were never meant to be crossed, regardless of how the times had changed since 1789.
Supreme Court Justice Steven Breyer came out on the side of an action-oriented Constitution. He’s known for his creative metaphors, imaginative hypotheticals and, above all, his functionalism. In Breyer’s dissent, joined by three of his colleagues, he quoted Chief Justice Marshall in McCulloch v. Maryland (1819) and argued: “Immutable rules would deprive the Government of the needed flexibility to respond to future exigencies which, if foreseen at all, must have been seen dimly.”
According to Justice Breyer, he and Chief Justice Marshall correctly realized the Framers aimed to create a Constitution that would “endure for ages to come,” which requires granting Congress the ability to respond to the “various crises of human affairs.”
On the other side, writing for the majority, Chief Justice Roberts channeled a formalist interpretation and made the case for a Constitution designed to frustrate speedy responses, if necessary to maintain bright lines between the branches. Citing Supreme Court precedent, Roberts asserted: “The fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution, for convenience and efficiency are not the primary objectives — or the hallmarks — of democratic government.”
The fun (and frustrating) part about law school is that these justices are all persuasive, articulate and steeped in Supreme Court precedent. They rarely make bad arguments and they force even the most fierce functionalists to see some merit in a more formalist interpretation, and vice versa.
With a majority of the Supreme Court adopting a formalist interpretation, though, those who share Breyer’s view of democracy have a tough battle ahead. Count me among those who think our government ought to be guided by outcomes.
The wonderful part about our democracy is the people are the sovereigns. Functionalists and formalists alike agree all power exercised by the president, Congress and the Supreme Court is derived from the people. That means We the People — you and me — have the obligation and opportunity to make sure our power is used toward whatever objectives we view as the hallmarks of our democracy.
Outcomes-oriented governance is not easily accomplished. If some people advocate more persuasively or more persistently, their outcome might win the day. Which is why we ought to do all we can to bring more voices into the delegation of our collective power to our delegees.
Oregon has long championed finding ways to bring the people into the process of power sharing. From the initiative to automatic voter registration, the state has found ways to give people the chance to divvy out their share of power. Those innovations have paved the way for a lot of participation, but there are still some people who find it easier than others to distribute their power.
We can achieve an outcomes-oriented democracy if we can bring everyone into the fold. That’s why we need to lower barriers to folks simply looking to fulfill their role as sovereigns.