Hobbling Along

A lot has been written about the implications of the recent spate of Supreme Court decisions, both for the court itself as well as the country.  In particular, the Burwell v. Hobby Lobby Stores case has created a small firestorm on social media and been a boon to both Democratic and Republican candidates running this fall.  But nearly all of this coverage has ignored a growing theme in the court’s decisions:  the legislative gridlock that characterizes Washington is increasingly forcing the court to address issues that would be better addressed by Congress.

The first instance of this came in the court’s decision last week on the EPA’s authority to regulate carbon emissions under the Clean Air Act.  While the EPA retained the right to regulate 83% (as opposed to the full 86% they sought) of the carbon emitting facilities in the U.S., the court did constrain the ability of the EPA to make future regulations.  The EPA had attempted, lacking an update from Congress to the Clean Air Act, to unilaterally adjust the size of the facilities subject to EPA regulation in order to minimize the economic burden of compliance on companies.  The court decided that the EPA did not have the authority to adjust this size criteria without guidance from Congress and so implemented their own method of lowing the burden on companies.

It is unclear now which of these approaches is more appropriate; but regardless of whether the EPA’s approach or the Court’s approach to this problem is more suitable, it is clear that the decision over which to use should not have been made by either the EPA or the Supreme Court.  Rather, it is a decision that should be made legislatively with an update of the Clean Air Act.  The inability of Congress to make this necessary update has forced this decision to be made by either the executive or judicial branches of our government. Neither branch is (or is at least minimally) responsive to voters and neither is best suited to make these types of decisions.

This pattern continued in the more discussed Hobby Lobby case.  While the public health implications of the decision are certainly important, and one can argue about whether the case was decided correctly, the fact that it was decided at all is a testament to the legislative quagmire that is today’s Congress.  The court itself seems to note this in a critical part of their decision where they find that the mandate that employers provide birth control is not the narrowest means of promoting the government’s interest in providing no-cost birth control.  Rather, the Justices argue that the government could provide the no-cost birth control itself at substantially lower cost than requiring employers to provide it.  This is in-line with the general consensus among economists that the government could most efficiently provide health insurance.

Unfortunately, government provided health insurance is a complete impossibility in the current political context.  Thus, Congress settled on a second-best solution which ultimately forced the Court into making a decision which could have been avoided.  Ultimately it appears the government will implement an exemption for companies like Hobby Lobby that will allow for continued access to birth control.  Unfortunately it appears this exemption will lead to further court challenges.

Democracy is designed to force compromise.  That is one of its great benefits.  But even in the best of circumstances those compromises sometimes result in second best solutions to policy problems.  Today is not anywhere near the best of times in the U.S. Congress.  The record levels of dysfunction have forced the other branches of the government to pick up the slack and step outside of their traditional roles just to get something done.  These new behaviors have increased controversy (in the case of the Supreme Court rulings) and resulted in out-of-date and ineffective policy (in the case of the Clean Air Act).  As long as Congress continues to do nothing and the executive and judicial branches are forced onto new ground, policy will suffer.


Image Credit: CyberXRef via Wikimedia Commons


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