Judicial Checks and Moral Hazardby GREG WEINER
The ACLU has hailed a federal judge’s ruling last month that President Trump cannot redirect military construction resources to build a border wall that Congress refused to fund as “a win for our system of checks and balances, the rule of law and border communities.†It actually illustrates the decline of checks and balances. Worse, it risks the acceleration of that erosion.
The system of checks and balances elucidated in Federalist 51 assumes Congress will protect its institutional interests against incursions by the presidency and other actors. Instead, the recent trend is for legislators of both parties to defend their political interests at the expense of institutional prerogatives that, in turn, they assume the courts will protect for them.
The result is moral hazard: When the courts signal that they will do the Congress’ job, Congress—with political interests tugging against institutional authority—is less likely to do that work itself.
As the regime increasingly orbits around the Hobbesian principle of attraction or aversion to the sitting president, legislators have decided the best way to keep their jobs is to orient themselves similarly. One question is why they want these jobs if the cost of keeping them is draining them of authority. This collapse of the power motive among political men itself raises serious questions about the durability of the separation of powers, which depends on competing ambitions. But another question is why legislators should bother defending institutional authority at all if the courts will do it for them...
https://www.lawliberty.org/2019/06/24/judicial-checks-and-moral-hazard/?fbclid=IwAR1wTesE7ccOHYBBwBrENmJza67Frv0dOl5nt5sDt-RnOJux3oGjMt6nn5M
