Will the Legacy Highway be Built?

A lot of people are breathing easier, thinking that we are now on track to build the Legacy Highway – um, Parkway (see here). Maybe we are, maybe we aren’t.

Rep. John Dougall (R-Am. Fork) notes that the following steps remain:

• Approval of the agreement by the Gov.
• An up or down vote by the legislature (no amendments, no changes).

Rep. David Ure (R-Kamas) thinks the agreement that was inked last month is immensely better than the July agreement, but he will still vote against it (see here). He opposes on principle negotiating with environmental groups perpetrating “Blackmail.” (Some would disagree with him – see here). Ure says that the state has more than satisfied the requirements of the original lawsuit, spending more than $2 million per mile of the proposed road just in environmental studies. He notes that the agreement has nothing to do with that lawsuit, but was negotiated in order to avoid another threatened lawsuit.

Rep. Dougall discusses here the federal process that got us to this point with environmentalists, noting that “Essentially, Congress hands them the gun, loading the chamber, and then expects us to negotiate.” His suggestion: “Don't like it? Contact your Congressmen (and/or one of their opponents).” Not a bad idea.

As we have known all along, the Sierra Club and its friends never had any intention of allowing Legacy to be built unless all of their demands were satisfied, not just the three issues cited by the 10th Circuit Court of Appeals. The environmentalists threatened to file another suit that, regardless of merit, would tie the process up for another number of years. So UDOT decided to cut bait and give them what they want.

Rep. Ure cites John Adams’ statement that we should have “a government of laws and not of men.” He contends that “Giving in to groups who threaten to use the courts to rob Utah taxpayers of money and economic progress is giving in to a government "of men."” Ure says that despite his desire to get Legacy built and his wish not to delay it a single day more, it is more important to stand firm on the principle of being governed by laws rather than by men.

Rep. Dougall is more pragmatic. He says, “This was a win-lose agreement. Either way the Sierra Club, et al. won and the traveling public lost. The key debate will now be whether this settlement is better than just continuing the battle in court.” While Dougall never states how he will vote, he says, “The State's option is how do we cope with a bad situation and minimize its impact on the taxpayers.” I’m not sure that puts him at odds with Ure, but to me it comes across as more practical than principled.

Of course, many friends of mine are quick to point out that the Founders also created the judicial branch of the government. They will argue that Ure and Dougall are both off base in claiming that legal action or the threat thereof thwarted appropriate action. They will rather contend that it resulted in a reasonable outcome.

This all comes down to the basic struggle about the proper role of the judicial branch. Some want the courts to implement desired policies regardless of the will of the people expressed via the legislative branch. They want courts to find “innovative” interpretations of legal documents, including the Constitution. Others want our laws strictly interpreted to determine if they meet the standards established by the Founders in the Constitution.

This latter group’s understanding of the role of the judiciary was embodied in Chief Justice Roberts’ statement during his confirmation hearings that “judges are like umpires. Umpires don't make the rules; they apply them.” This is why conservatives fought so hard to kill the Miers nomination. It is also why they are thrilled about Judge Samuel Alito’s nomination to the Supreme Court. His record shows that he sticks to interpreting the law rather than making it up as he goes.

The simple threat of a lawsuit would not carry so much sting if our judicial system were dedicated to strictly interpreting the law. But that would solve only part of the problem. Our legislative branch sometimes creates statutes that they fully intend to be resolved by the judiciary rather than grappling with the hard issues up front. My friends in legislative positions will be quick to note that this is a chicken-before-the-egg kind of issue. Legislative bodies create statutes that way because the judiciary has gained so much power, and vice versa. But maybe if Congress actually did its job of judicial oversight, the judiciary would not be out of control. And maybe if we hadn’t federalized so many matters that should be handled locally, our local judicial jurisdictions could manage things at the appropriate level rather than tossing them up to the federal level. (See LaVarr Webb’s marvelous essay on federalism). And maybe if we hadn’t implemented so many socialist policies that the government is now in every facet of our daily lives we wouldn’t need all of those court rulings.

What we need is for everyone to go back to doing the job intended for them by the Founders. Changing Supreme Court justices can help, but it’s only part of the puzzle. We need to decentralize many functions that should be handled at levels below the federal level. We need Congress to exercise proper judicial oversight. We need legislative bodies to do the hard work of creating good laws up front. We need citizens to reduce their dependence on the government and legislatures to reduce socialist programs. Like a good team, we need all of the players to play their positions and to play them well.