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The courts and public policy

Even with judicial review in place, the courts do not always stand ready just to throw out actions of the other branches of government. More broadly, as Marshall put it, “it is emphatically the province and duty of the judicial department to say what the law is.”

Marbury v. Madison , 5 U.S. 137 (1803).
The United States has a common law    system in which law is largely developed through binding judicial decisions. With roots in medieval England, the system was inherited by the American colonies along with many other British traditions.
“The Common Law and Civil Law Traditions.” The Robbins Collection . School of Law (Boalt Hall). University of California at Berkeley. https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html (March 1, 2016).
It stands in contrast to code law systems, which provide very detailed and comprehensive laws that do not leave room for much interpretation and judicial decision-making. With code law in place, as it is in many nations of the world, it is the job of judges to simply apply the law. But under common law, as in the United States, they interpret it. Often referred to as a system of judge-made law, common law provides the opportunity for the judicial branch to have stronger involvement in the process of law-making itself, largely through its ruling and interpretation on a case-by-case basis.

In their role as policymakers, Congress and the president tend to consider broad questions of public policy and their costs and benefits. But the courts consider specific cases with narrower questions, thus enabling them to focus more closely than other government institutions on the exact context of the individuals, groups, or issues affected by the decision. This means that while the legislature can make policy through statute, and the executive can form policy through regulations and administration, the judicial branch can also influence policy through its rulings and interpretations. As cases are brought to the courts, court decisions can help shape policy.

Consider health care, for example. In 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (ACA), a statute that brought significant changes to the nation’s healthcare system. With its goal of providing more widely attainable and affordable health insurance and health care, “Obamacare” was hailed by some but soundly denounced by others as bad policy. People who opposed the law and understood that a congressional repeal would not happen any time soon looked to the courts for help. They challenged the constitutionality of the law in National Federation of Independent Business v. Sebelius , hoping the Supreme Court would overturn it.

National Federation of Independent Business v. Sebelius , 567 U.S. __ (2012).
The practice of judicial review enabled the law’s critics to exercise this opportunity, even though their hopes were ultimately dashed when, by a narrow 5–4 margin, the Supreme Court upheld the health care law as a constitutional extension of Congress’s power to tax.

Questions & Answers

Why does the devolution of power cause an increase in the number and types of interests?
Karen Reply
Bigger the governments or in devolution, number of governments, more people come to power, so more corruption.Federal system is also example of devolution, WHERE three lists are made, one handled solely by centre like Defence etc., other decided by provincial gov as edu., other example is Scotland.
Saleem
examples of countries with direct democracy?
Nicolas Reply
what is four main reason of government
Abubakarr Reply
how is the president in United States
Abubakarr
I m not staying in United states but I wish to go they
hasan
Which of the following is true of spending in politics
Ashley Reply
what is government
Michael Reply
is the system to govern a state or community
Gumersindo
what is government
Meyty
what 2 important issues went unresolved in the constitution?
Queenie Reply
the 1957 Ghana constitution
Ahorlu Reply
The framers of the Constitution designed the Senate to filter the output of the sometimes hasty House. Do you think this was a wise idea? Why or why not?
Emily Reply
what is freedom?
syed Reply
what is political eqaulity
syed
what is federalism?
Maria Reply
federalism Federalism is a system of government in which entities such as states or provinces share power with a national government. The United States government functions according to the principles of federalism.
deborah
panyaring means
Opata
meaning of panyaring
Opata
what is government
Opata
how is power dispered in American federalism?
Savannah Reply
how is power dispersed in American federalism?
Savannah
what three factors molds nations, state, relations today
Savannah
what three factors mold national,state relations today
Savannah
In which areas do you think peoples rights and liberties are at risk of government intrusion?
camille Reply
whenever......new government
Marjan Reply
clearly,who was meant to be in charge of this new government?
Marjan
What is and who is required to file a foreign agent registration statement form
David Reply
Anything on the Mayflower Compact
deborah Reply

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Source:  OpenStax, American government. OpenStax CNX. Dec 05, 2016 Download for free at http://cnx.org/content/col11995/1.15
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