Analogies between legislative and judicial processes

Legislative & Judicial Duties / Responsibilities

The federal judiciary and the U.S. Congress (the legislative branch) have a lot in common, more in common than many people realize, albeit both branches have very different Constitutional duties and responsibilities - some of which bring them into confrontational modes. Also, the two branches interact in ways that are not always hospitable - for example, the branches may clash over how much power the executive branch wields - and yet they define one another in the process.

This paper reviews the ways in which these two powerful branches of government interact, collide, and cooperate. Specific examples of the dynamics between the two branches will be introduced, in order to fully appreciate their Constitutional powers.

A brief review of duties is called for at this point. To wit, the primary duty of the Congress (the U.S. Senate and U.S. House of Representatives) is to create laws (after debate and research on issues that confront the nation), but Congress also is duty-bound to investigate important matters and to supervise and provide oversight for the executive and the judicial branches of government. Indeed, the U.S. Senate approves or rejects Supreme Court nominees. As for the judiciary, it has the power (given through the Constitution) to review and pass judgment on the laws that Congress passes. it's called "judicial review," and naturally there are Constitutional clashes resulting between the seemingly competing - yet ultimately cooperative - powers.

It is interesting that the legislators back in the 18th Century who wrote the Constitution did not specifically give the judiciary the power to check the laws Congress passes in order to verify (and interpret) their Constitutionality. That judicial authority is an "implied power" (strengthened through Marbury v. Madison in 1803), while Congress's authority to oversee the judiciary is an explicit power, written into Constitution in Article 1. But both sources of power are wielded with great authority and much media attention in the United States today.

EXAMPLES of JUDICIAL / LEGISLATIVE DYNAMICS: The best way to illustrate the similarities and differences - and the linkage between the two branches of government - is to use real-world examples as analogies. One example in this regard is the issue of executive power subsequent to the terrorist attacks of September 11, 2001. In an effort to gain information about potential terrorist threats - and thwart those attacks before they can be carried out - the Bush Administration authorized the National Security Agency (NSA) "...without a warrant and in violation of the Constitution" (www.alcu.org).The "Foreign Intelligence Surveillance Act" (FISA) - with a secret court built into the legislation - was established in 1978 for the expressed purpose of giving the executive branch a covert "warrant" to spy on Americans if a threat could be documented.

Congress and the judiciary got deeply involved in this issue, when it was learned in 2005 that Bush had authorized these eves dropping programs without FISA warrants. The American Civil Liberties Union (ACLU) challenged Bush's authority to conduct domestic spying (through the cooperation of telephone corporations like Verizon, at&T, et al.) through the judiciary. As a result of that action, in August 2006, the U.S. District Court Judge Anna Diggs Taylor ruled that the eaves dropping violated the 1st Amendment, the 4th Amendment, and the FISA itself. "It was never the intent of the Framers to give the President such unfettered control," Judge Taylor stated. Meanwhile Congress was reluctant to challenge Bush (members feared being termed "unpatriotic" since Bush argued that the safety of Americans depended on the secret surveillance done by NSA) immediately, but in the past few months Congress (the House Intelligence and Judiciary Committees) has demanded - and in part received - access to internal documents on the wiretapping program. "That access could ultimately help persuade skeptical lawmakers in the House, which so far has rejected the immunity idea, to sign on to the White House's Plan" (Lichtblau 2008) according to the New York Times.

Indeed the Senate in January 2008 gave immunity for the phone companies that helped the NSA tap phones secretly, which means Verizon, at&T, et al., cannot be sued for assisting the Bush Administration with its warrantless wiretapping program (there are over 40 lawsuits pending over the phone companies' roles in the wiretapping). So here is a case of Congress and the Courts participating part of the drama that was initiated by the executive branch. This is a classic example of the interaction alluded to in the introduction.