In a corker of a brief filed last week in the United States Court of Appeals for the Third Circuit, the United States Attorney for the Eastern District of Pennsylvania, William M. McSwain, methodically and energetically outlined how a district court judge subverted his role as interpreter of laws, by essentially rewriting legislation enacted by Congress in the 1980s. Thus, rather than we, the people, making changes to our laws by electing representatives to write new ones, one unelected judge superseded that process by changing the plain meaning of a statute to conform to a desired outcome.  

In a representative democracy such as ours, the design of our government constrains the authority of even those vested with great power.

In a representative democracy such as ours, the design of our government constrains the authority of even those vested with great power. Our founders built a system of separate, co-equal branches of government in response to the tyranny of an English king who made the laws, enforced them and controlled the judges that interpreted them. Thus, while the Constitution’s drafters recognized that the new government would necessarily be entrusted with some degree of power, that responsibility came with carefully crafted restrictions. 

A civics lesson with which we should all be familiar: Americans elect both our legislators who draft our laws and our president who enforces them. The president nominates individuals to the federal judiciary who must be confirmed by the legislative branch. Unlike any other government role, the judiciary enjoys lifetime appointments, a deliberate move by our founders to free our judges from the influence of the ever-changing winds of political affairs. No one branch enjoys absolute power over another.

When those in our various branches of government stray from their lanes to take actions outside their constitutionally appointed roles, our system provides remedies, known as checks and balances. These concepts exist not simply to provide material for grade school civics classes but to provide meaningful restraint on any one individual in our system. What our founders drafted in Philadelphia in the eighteenth century, vesting supreme authority in the collective people rather than an omnipotent sovereign, safeguards us to this day. 

Contemporary Americans no longer fear a ruthless and totalitarian king. We do abhor, however, an elected leader or appointed official who departs from the authority of their office. When that occurs, we feel our power of self-rule slipping away, supplanted by the autocratic decisions of one individual.

We do abhor, however, an elected leader or appointed official who departs from the authority of their office.

Sometimes, however, if a group of citizens develops what they consider a fantastic idea that should be the law of the land, shepherding a bill through the cumbersome and tedious process of Congressional lawmaking seems like an inconvenient and time-consuming obstacle. If that group of citizens means well, why not find someone in government willing to circumvent the process? Unfortunately, certain officials stand all too ready to sidestep democracy and veer out of their constitutionally appointed lane.

United States of America v. Safehouse, et al, involves the legality of so-called supervised injection sites. A pet project of former Governor Ed Rendell and his cohorts, Safehouse, a nonprofit, wishes to set up facilities in Philadelphia for people to use illegal narcotics, such as heroin, in sight of “monitors” who could hopefully bring them back to life if they overdose.  

A 1986 federal law, 21 U.S.C. § 856(a)(2), prohibits opening or managing places for the purpose of manufacturing, distributing or using any controlled substance or making such places available for the public. In a nutshell, the district court found that because Safehouse’s ultimate purpose was to save lives, that commendable intent rendered the proposed facility lawful. 

In order to decide that, despite the plain language of the statute, Safehouse could indeed open and operate a facility for the purpose of illegal drug use, the district court relied on the legislative history of the making of the statute. For the uninitiated, “legislative history” includes unpassed bills, speeches, reports and studies generated by Congress and committees as a law is being written, debated, edited, studied and passed.  

While legislative history can be informative, enlightening and even entertaining to some, it is also all-encompassing. Accordingly, any testimony, even by the kookiest of legislators, or the most radical report of committees or legislative aides, becomes preserved in the legislative history.

Accordingly, any testimony, even by the kookiest of legislators, or the most radical report of committees or legislative aides, becomes preserved in the legislative history.

A statute duly passed by Congress, and signed by the President into law, comprises the final version of what Congress intended. Lawmakers shed much of the rubble of legislative history to compromise on the ultimate wording of the final law.

The best reference for a judge to draw upon to interpret a statute — the only one, really — is the plain wording of the statute itself, not what he or she purports somebody meant in their testimony or statements to the media or writings around the bill. If judges have free reign to rely on the legislative history to discern the so-called “true meaning” that Congress intended, they can essentially ascribe any meaning they so desire — finessing their chosen outcome out of a sticky morass of “history” with no further justification necessary. 

But isn’t the best record of what Congress tried to say found by reading the statute to see what it actually said?

But isn’t the best record of what Congress tried to say found by reading the statute to see what it actually said? And if we elevate legislative intent to a necessary judicial interpretation tool, are we not encouraging those who make our laws to include their most peculiar, idiosyncratic and even extreme thoughts somewhere in the speeches, reports and research that all go into the drafting of a law? That way, even if the final version of the law says one thing, someone can later put it in front of a judge, who can then shape the desired outcome well beyond what the majority of its supporters intended by combing through the detritus of legislative history. Conveniently, a lifetime appointed judge does not worry about re-election. But by swerving so far out of his or her constitutionally empowered lane, that judge summarily negates representative democracy.

U.S. Attorney McSwain noted in the Safehouse brief: “The remedy for those who disagree with this law lies with Congress, not in the courts.” McSwain understands the danger of usurping the will of we, the people, in a representative democracy.

McSwain understands the danger of usurping the will of we, the people, in a representative democracy.

Hopefully, the Third Circuit will reverse the district court’s ruling in this case, as it relied upon logical absurdities. If we, the people, want facilities in our neighborhoods where people can legally consume heroin and other opioids in the presence of overseers who will endeavor to reverse fatal overdoses, then we should choose elected leaders willing to draft and pass those laws permitting that behavior. Judges, even those who may have laudable intentions, should either leave the lawmaking to Congress or leave the bench and run for office.

Linda A. Kerns is an attorney and a co-founder of Broad + Liberty. She can be reached at lkerns@broadandliberty.com. @lindakernslaw.

One thought on “Linda A. Kerns: When judges rewrite legislation, we lose freedom to govern ourselves”

  1. Linda, Another great article. Why would anyone think making illegal activities legal is a good idea? Bet there is no plan to put a Safehouse site on Rendell’s block.

    Elizabeth Elkin

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