Public Law and Policy


Welcome to the Public Law and Policy Blog. This blog is hosted by Judge Hal Campbell, Ph.D. During his forty year professional history Judge Campbell’s service included time as a Deputy Sheriff with the Los Angeles County Sheriff’s Department and as Director of Law Enforcement Planning for the department. He earned his Ph.D. in Public Law from Claremont Graduate University in 1983. Since 1989 he has served as a professor and department chair for the California State University and the University of Maryland. He was appointed to the bench by the Supreme Court of the State of Montana in 2010 and now serves as Executive Director of JusticeAcademy.org. You can email him with your comments at director@justiceacademy.org.

3 thoughts on “Public Law and Policy”

  1. The Composition of the Supreme Court and Public Law

    With the recent Senate debate over the nomination of Judge Neil Gorsuch to serve as Associate Justice of the Supreme Court, we again find ourselves in the middle of the never ending debate of how the Court should function as an independent entity of the U.S. government and the various philosophies and dynamics that influence the rulings of the Court. Justice Scalia spoke eloquently about the importance of the Court maintaining a viewpoint of originalism or contextualism within the deliberations of the justices regarding matters brought before the Court. He argued incessantly about the merits of holding firm to the conviction that the Constitution says what it says and doesn’t say what it doesn’t say. What he meant by this is that within our form of government it is essential that all three branches of the government function as they were envisaged by the founding fathers and they should approach their charge in the manner afforded under the Constitution. Essentially, this point of view pertained mostly to the legislative branch and as he suggested many times, congress has an obligation to deliberate over the merits of public policy and enact laws that keep pace with the ever changing values of our society, as opposed to seeking the intervention of the Supreme Court over issues that were either politically unpopular or highly politically charged. Both political parties have been guilty of praying before the Court that there side of the argument must be embraced because the Constitution “could” be interpreted in support of their argument. Even the executive branch has been culpable in seeking this form of remedy from the Court. The point is that the Supreme Court is not a political entity of the government and cannot function properly in such a role.

    From a very practical perspective, Presidents have a tendency, in recent years, to use their advantage in the Senate, not to assure that a balance is maintained on the Supreme Court, but rather to pack the Court with as many justices as possible that see things as they do, and who may rule, more often than not, in the favor of their political party. I suspect that this is a natural byproduct of the political process, but I am also persuaded to the viewpoint that after the confirmation process is over, most Supreme Court Justices resent the very nature of the ordeal and vow to use their lifetime appointment to rule as they see the facts, and not how a political party may hope they might decide the issue.

    Getting back to the notion of contextualism, it seems that Justice Scalia may well have been correct in his assertion that the U.S. Constitution says what is says and doesn’t say what it doesn’t say. This means that legislators would be well served to bolster their courage and enact public laws that are in harmony with the protections of the Constitution, but which also reflect hat he evolution of our society, as opposed to hoping that the U.S. Supreme Court will rely on inference to render a judgment about what the Constitution might have meant about the matter under deliberation. I guess we’ll see how it turns out but it strikes me that those nominated and appointed to the bench have the strength and character to resist the efforts of others to render the United States Supreme Court as just another branch of government that is partisan in nature.

  2. The Ballot Initiative Process and Public Law

    As I have mentioned previously Public Law is a unique aspect of the legal system that derives its authority from the United States Constitution. It also owes its lineage to every state Constitution that empowers the legislature to enact laws governing the citizens of their jurisdiction. One of the more dynamic aspects of this conceptual framework of public governance is through the ballot initiative process whereby the voters of the state bypass the legislature altogether in order to enact legislation. According to the Attorney General, the ballot initiative process gives California citizens a way to propose laws and constitutional amendments without the support of the Governor or the Legislature. Perhaps the most famous of these initiatives was Proposition 13, which was placed on the statewide ballot in 1978, which amended the Constitution of California to limit the amount of taxation that could be imposed by state and county governments of real estate property. Twenty-six states currently provide for a ballot initiative process and this mechanism has been used by state residents to end animal cruelty, to enforce clean elections requirements, to promote environmentally friendly practices, and a plethora of issues that routinely failed to garner the attention of politicians or the actions of a legislature.

    There are innumerable justifications for the ballot initiative process as a means of enacting public laws but from a philosophical and political viewpoint such a mechanism strikes at the very heart of the republican form of government. Ballot initiatives are, by their very nature, democratic mechanisms that seek to replace a republic form of government that use elected officials to carry forward the will of the people with a notion that embraces the power of the people, squarely in the hands of the people, when representative government fails to meet the demands of its citizens. There doesn’t seem to be a mechanism for such uprisings in the federal system of government, but if there were, perhaps a balanced budget amendment might be the very first such ballot initiative sought by the electorate.

  3. Presidential Executive Orders and Public Law

    One of the least well defined but more fascinating aspects of public law that is receiving a good deal of attention these days involves the issuance of Presidential Executive Orders as a mechanism for the distribution of proclamations, thereby usurping Congressional authority as the authors and originators of public law. Executive orders have become a fashionable tool for invoking the political will of the executive branch of the government, without congressional debate, and are used for a variety of purposes. Most recently, this mechanism appears to be the desired approach by the current occupant of the White House in order to foster immediate public gratification about his decisive presidential leadership ability and his adherence to campaign promises. This political tactic has garnered an equally intense level of scrutiny by the media, the Congress, the states, and even the voting public about the legitimacy of its use. In fact, we just witnessed a series of legal challenges brought by several states that were of the opinion that use of such a tactic to create public law in order to ban citizens of (some) nations from entering the United States was unconstitutional. This viewpoint was upheld initially by the United States District Court and then again by the Ninth Circuit Court of Appeals, in two separate legal challenges. In both cases, a Temporary Restraining Order was issued blocking the actions prescribed within the executive order. The use of an executive order to impose such a far reaching public law may well end up being reviewed by the U.S. Supreme Court, but probably not on the basis that it is an incorrect mechanism to support the advancement of a particular political agenda, but more likely predicated on judgment about the appropriateness of the specific language contained within the executive order itself, and the subsequent order, and their conformance to constitutional provisions.

    It is not my intention to use this particular situation for any other purpose than to argue the point that public law and policy is an inherently complex aspect of our society and accordingly, does not lend itself well to the imposition of public law and policy based on an extrapolation of public will by a single individual, without the benefit of broad public discourse. That critical component of public law deliberation and enactment is almost certainly best suited to the legislative process. History and tradition have taught us that the democratic process and broad representative government is well suited to the task of developing and enacting public law and policy, and accordingly, should reside within the exclusive domain of the legislature.

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