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Presidential Issues: Federalism


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5 questions every presidential candidate should answer on judicial and executive powers

September 17, 2015

By John Yoo

1. Do you believe that the Supreme Court correctly struck down state bans on gay marriage this year in Obergefell v. Hodges?

Obergefell has sparked such criticism among conservatives not just because of its position on gay marriage. The decision illustrates much that is wrong with the modern Supreme Court, which has arrogated to itself the power to make many of our nation’s fundamental social policies through its freewheeling interpretation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. This runs counter to the Constitution’s basic design, which leaves most policies in the hands of the states and vests in the federal government control over discrete issues such as national defense and foreign policy, a national free market, and nationwide individual rights and political freedoms.

The Constitution’s text does not address gay marriage or sexual orientation, which means the Framers left the decision up to the 50 states. If the states can decide questions about life and death, as they do on euthanasia and the death penalty, they should regulate questions about marriage and family law generally.

1. Do you agree with the Supreme Court’s decision to uphold the constitutionality of the Affordable Care Act, otherwise known as Obamacare, two years ago in Sibelius v. NFIB, and to save its tax subsidies this year in King v. Burwell?

Opposition to Obergefell does not mean that the Supreme Court must never exercise judicial review. The main purpose of the Court is to interpret and enforce the Constitution as it was written and understood by the Framers. And perhaps the most important task before the Framers was how to balance the powers of the federal and state government. The Constitution places careful limits on the powers of the national government, which are supposed to be narrow and specialized while leaving most decisions in the hands of the government closer to the people.

Read the full article at the American Enterprise Institute: 5 questions every presidential candidate should answer on judicial and executive powers

Issue Categories : Federalism, Judiciary