Congress is not authorized to delegate its constitutionally authorized functions, which is debating and deciding the reasonableness, justice and fairness of legislation and policy, while the court’s job is limited to determining if such legislation and policy making decisions violate the terms of our Constitution.
The proper remedy, for those who disagree with placing the question on the ballot, was to have Congress, our elected representatives, visit the issue. Placing the question on the census form, we all agree, does not violate the Constitution. And Roberts ought to have explained this to those who disagree with putting the question on the census form. Instead, he exercised an exclusive function assigned to our elected representatives. In so doing he undermined our Constitutionally limited “Republican Form of Government” which is guaranteed by our Constitution and has assigned policy making decisions and legislation to our elected representatives.
And with regard to this very question, our judiciary exercising a legislative function and second guessing policy making decisions, Justice Hugo L. Black emphatically pointed out: "The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice."
And in U.S. v. Butler, 297 U.S. 1, 78-79 (1936) the court eloquently put it this way: ”The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies, not to the courts, but to the ballot and to the processes of democratic government.”
And more recently, the court in Hillis v. Department of Ecology, 131 Wash. 2d 373, 932 P.2d 139 (1997) pointed out:
”Just because we [the courts] do not think the legislators have acted wisely or responsibly does not give us the right to assume their duties or to substitute our judgment for theirs.”
JWK
Our Supreme Court has usurped power and set itself up as an unelected, omnipotent and unreviewable, policy making branch of government not authorized by our written Constitution.
