“You should have known that could happen.” Words heard by countless children over the years. This statement, however, contains a principle central to the rule of law — and one that undergirded the Supreme Court’s recent decision in Cummings v. Premier Rehab Keller.
Understanding Cummings means recognizing that one reason our government operates by law is so citizens know what is expected of them. Laws enable one both to plan ahead to avoid prohibited actions and to comply with required ones. Yet the law must do more than that. It should declare what happens when someone violates the law’s requirements.
In Cummings, the Supreme Court considered whether it should tell a Dallas-Forth Worth physical therapy business that it should have known it would incur a certain punishment if it violated the law. The company faced a discrimination lawsuit as a result of not providing an American Sign Language interpreter for Jane Cummings, who is deaf, during her appointments with the company.
This case did not dispute whether Premier Rehab Keller violated the laws’ terms. Instead, the issue is in the fact that none of the pertinent anti-discrimination laws say exactly what relief, in other words, what punishment, a violator should face.
In its response, the Supreme Court took a middle, muddled way. It focused on a similarly muddled precedent derived from a 2002 case by the name of Barnes v. Gorman. Central to the precedent, the Supreme Court wrestled with the reason the company had to comply with these laws on account of taking federal money in the form of Medicare and Medicaid reimbursements. As the national government required compliance with these anti-discrimination laws for getting federal money, the company had the choice of whether to submit to these anti-discrimination laws or not. Subsequently, the court turned to the norms of contract law to determine whether the company could expect to face damages for causing Cummings emotional distress.
Ultimately, while admitting the case law on this point was not settled, the court ruled the company did not have to face suit for those damages. Yet the court only found some grounding for its outcome by finding in Barnes that unsettled damages shouldn’t be considered the norm.
A clearer path existed, however, and would have set aside questions of federal spending and accompanying contract rules. Instead, these justices rightly saw a separation of powers problem tied to a rule of law problem. Congress makes laws and does so because the Constitution vests it alone with legislative power. As noted above, legislative power includes both saying what should or shouldn’t be done as well as the punishment for not complying.
Congress, of course, failed to fulfill its constitutionally prescribed duty on the latter point. Both in Barnes and again in this case, the court chose to “fill in” what Congress failed to do. As the majority at one point tepidly admitted, and Justice Brett Kavanaugh said more boldly, however, such action entailed judges making law. While the court did not comment on what discrimination meant, it determined what punishments should and should not occur when such discrimination occurred.
Thus, once more, the rightful job of Congress was undertaken by the Supreme Court. It violated the separation of powers, not sticking to its delineated judicial power of interpreting and applying the law as written.
Given Congress’s general inaction legislatively, it makes sense that the executive and judicial branches might, often in frustration, seek to step in to keep things working.
But violating the separation of powers violates the rule of law. And in the rule of law resides a vital, central means to our liberty. It means that our elected representatives make the rules governing our lives. That means we can vote them in or out, retaining control over the rules by which we live, including the punishments for violating the law.
The message to the courts should be clear: Stay in your lane and make Congress do its job.
Adam M. Carrington is an associate professor of politics at Hillsdale College.
