What’s Democratic about Giving Tax Dollars to Private Schools?

We rely on Congress to make our laws. But what happens when members of the House and Senate enact policies that violate federal law -- and the Constitution? Well, apparently not much. Legislative activities are protected from judicial scrutiny by the doctrine of “sovereign immunity.” This stipulates that the actions of one branch of government cannot be challenged by the other two branches. Federal courts, for example, will not rule on the constitutionality of actions taken by lawmakers. This is also the case when government violations of our First Amendment rights are alleged. This is the fatal flaw in our constitutional system of government: laws can be ignored or broken without consequence.

We saw evidence of how this policy works last year when the Supreme Court ruled in Trump v. United States that a sitting President cannot be prosecuted for performing “official acts” even when these include purported violations of his oath of office (in inciting a mob to obstruct the peaceful transfer of power on January 6, 2021). Similarly, charges of ethical and financial impropriety leveled at Justice Clarence Thomas for not disclosing gifts from wealthy friends were dismissed on the grounds that SCOTUS is entitled to set its own code of conduct. And when Trump’s executive orders exceeded his constitutional authority in ordering federal agencies to be dissolved or congressionally approved funds to be withheld, Republican lawmakers did not cry foul.