Philip Derrow, a New Albany resident, is a retired entrepreneur. He served two terms on the New Albany-Plain Local Board of Education. He is a regular contributor to the Columbus Dispatch.
The U.S. Supreme Court continues to take important steps to restore our democracy. Now that partisans, pundits, and even a Supreme Court justice are sounding the death knell for democracy, I am more hopeful.
The day after the most embarrassing — and perhaps terrifying — presidential debate of my lifetime, the Supreme Court ruled in a landmark case that began as a fairly mundane dispute over who should pay government inspectors on fishing boats.
The constitutional issue at issue concerned the standard by which the judiciary interprets federal law.
For the past 40 years, that question has been answered too often under a doctrine known as the Chevron Deference, which requires courts to defer to the discretion of federal administrative agencies, which are part of the executive branch. The court rejected Chevron.
Interestingly, the Supreme Court was two years behind the Ohio Supreme Court, which made a similar decision on judicial delays in 2022.
Our democracy has survived.
The right order is restored
Three days after Chevron Deference was defeated, the court released its long-awaited ruling in Trump v. United States, on the limits of presidential immunity.
Partisan politicians immediately jumped in to once again declare the death of our democracy, as did Justice cream Sonia Sotomayor in her exaggerated dissenting opinion.
Following Chevron’s historic ruling, Could the workplace safety agency, OSHA, be the Supreme Court’s next target?
Most attorneys with whom I have discussed this case view the majority decision as a narrow and fairly straightforward application of the constitutional text and precedent.
The ruling meant that former, current and future presidents have immunity from official acts, similar to that of judges, members of Congress and other elected officials. Even I had immunity from official acts as an elected member of my local school board.
To refresh my knowledge of citizenship: Article I of the U.S. Constitution gives the legislative power to make laws, Article II gives the executive power to enforce laws, and Article III gives the judicial power to interpret laws.
This separation of powers is central to our constitutional order, and these two most recent decisions—as well as the 2022 Dobbs decision on abortion rights—have in common that they restore that proper order.
Presidents should not be hindered
Over the past 90 years, Congress has increasingly delegated its lawmaking power to executive branch agencies, theoretically under the control of the president. In reality, these agencies and their unelected staffs too often operate as shadow legislatures, writing and enforcing their own laws.
By striking down Chevron Deference, the court effectively returned some legislative responsibility – and accountability – to Congress.
Trump’s ‘black jobs’ rhetoric trades in racial stereotypes and fear of immigrants
Similarly, the Trump ruling protects presidents from partisan “lawfare” attacks aimed at obstructing or intimidating a president they dislike, while Congress retains the power to impeach, convict, and remove from power a lawless president.
When the courts thwarted parts of FDR’s New Deal, the president threatened to pack the Supreme Court with justices he believed would be more accommodating. While FDR failed in his battle to pack the court, he handily won the battle for the balance of power, as the judiciary—intimidated by the threat—mostly remained silent or complicit, while Congress shirked its responsibilities and presidents ate it up with glee.
Democrats’ efforts to expand the Supreme Court today have strikingly similar — and deeply anti-democratic — goals.
While it may seem counterintuitive for legislators to voluntarily cede power to alphabet agencies and the courts, the reason is simple: self-preservation. The more they can delegate the messy job of proper lawmaking to unaccountable bureaucrats and judges, the easier it is for them to avoid the electoral defeat they would suffer by passing bad or unpopular laws.
Roe poisoned our politics for 50 years
The Dobbs decision, which overturned the 50-year-old Roe v. Wade case, was a graphic example of the benefits of giving power back to where it rightfully belongs.
Regardless of your views on abortion, Roe has never had a solid constitutional foundation. Even the venerable Justice Ruth Bader Ginsburg acknowledged its shaky foundation, laid by the earlier case of Griswold v. Connecticut. There, the Court found its basis in the “penumbras, formed by emanations” of the Constitution, rather than in its actual words.
Predicting auras is the domain of astrologers and psychics, not judges.
As bad as it was, Roe’s biggest mistake was that the court limited the role of citizens or their elected representatives in making new laws.
Trump vs. Biden Debate: 10 Cartoons About the First Presidential Debate
Roe poisoned our politics for 50 years, giving legislators carte blanche to write laws they knew would never stand up to scrutiny under Roe’s precedent. With Roe gone, some of those laws went into effect and the people had a chance to have their say, which they did all over the country, just as they had done in the years before the Roe court decided to let the judiciary make law.
Ohioans got their chance to show the power of true democracy in action after Ohio lawmakers passed a strict “heartbeat” anti-abortion law in 2023 and Governor Mike DeWine signed it into law. Just a few months later, Ohio voters overwhelmingly passed Issue 1, effectively canceling that law and guaranteeing abortion rights.
The Loper ruling is not about who pays government inspectors, any more than Dobbs was about abortion rights. Both cases were about who sets the laws under which we live as a society.
And no, Trump’s decision does not predict that there will be a dictator among us.
We are rightly concerned about our clearly weak president, which will be clearly visible during the debate on June 27. Just as many are concerned about the character of his opponent.
The answer is not to arbitrarily reduce or increase the power of any of our three branches of government, but to restore the proper constitutional order that balances that power.
This Supreme Court gives us back the gift of our democratic, constitutional republic.
Are we wise enough to keep it?
Philip Derrow, a New Albany resident, is a retired entrepreneur. He served two terms on the New Albany-Plain Local Board of Education. He is a regular contributor to the Columbus Dispatch.
This article originally appeared on The Columbus Dispatch: US Supreme Court Restores Democracy with Trump Immunity Ruling
