What keeps our system from paralysis is that there are alternative sources of law.


Today, we see a Congress stymied by ideological polarization. After its brief interlude of bipartisanship on immigration reform, the Senate has headed back into trench warfare over student loan rates. And even though the Senate on Tuesday was stepping back from the "nuclear option" on filibuster rules, it is not entitled to triumphalism. Polarization will persist.

In fact, at this pace, Congress will conclude its first session with nothing to show for itself other than the symbolic renaming of federal office buildings and repeated efforts to repeal ObamaCare.

So, it was not encouraging news when the Supreme Court ruled recently that Congress needs to rewrite one of the nation's most significant civil rights laws on voting rights. How likely is that to happen in a Congress that prefers political skirmishes to negotiated settlements?

All this might seem to shed a harsh light on our form of government because it often seems that the only way to accomplish anything is by circumventing Congress. In fact, what saves our system from seizing up totally is that there are sources of law other than Congress.

Unlike most other political systems where the legislature is the sole source of binding legislation, we have the court system, the regulatory bureaucracy, the power of the president to issue executive orders and 50 states as alternative sources of law.

Civil rights examples

Civil rights offer the best example of how we manage to sidestep a paralyzed or recalcitrant Congress by the simple act of filing a lawsuit.

Next year, we will be commemorating the 50th anniversary of the Civil Rights Act of 1964 and the epic struggle in Congress that led up to its signing by President Lyndon Johnson. The passage of the bill was a monumental accomplishment not just for its sweeping attack on discrimination in public accommodations, but also for the fact that it was the only significant civil rights bill passed by Congress since the Civil War era.

In that 100-year period, Congress had rebuffed every effort to enact a voting rights bill, a broad civil rights bill and even anti-lynching legislation. Before 1964, important breaches in the fortress of segregation that bypassed a recalcitrant Congress often went unnoticed. The message they send to us is that not by Congress alone does important laws get on the books.

Judicial, executive

Outside of constitutional law courses, few people will remember the 1944 Supreme Court case of Smith v. Allwright or the 1948 case of Shelley v. Kraemer.

In the first case, the court struck down a legal ruse used by Southern states to disenfranchise African Americans by enabling the dominant Democratic parties in those states to constitute themselves as private clubs to exclude blacks from participating in party primary elections.

The 1948 case established that racially discriminatory deeds that barred blacks from home ownership were not enforceable by courts.

That same year, President Truman issued an executive order barring racial segregation in the armed forces. All these were done without the involvement of a Congress that would not have approved any of them.

These unconventional approaches that bypass the legislative process are some of the unique features of our political system. It is a system in which you can sue your way to public policy.

Consider the many lawsuits that made it to the Supreme Court and wrought vast changes in our laws, from the Miranda decision on the rights of criminal suspects to the case that decriminalized homosexual acts by consenting adults.

We have another avenue for forcing change that has often served to goad Congress into action. California, by reason of its huge economy, has been able to use state laws to push Congress to tighten vehicle fuel efficiency standards and limit greenhouse emissions.

We mistakenly view Congress as the only source of authoritative laws, and a cursory reading of the Constitution would have us believe that it is the only path.

On closer examination, we see that over the years, the system has evolved to endow us with channels of lawmaking not found in the Constitution: everything from judicial review that enables courts to strike down acts of Congress to rule-making powers for federal agencies.

While these innovations don't get Congress off the hook, they are an essential chain of ports in a storm.


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