The Supreme Court and Expectations From Congress

Evaluating the Cummings v. Premier Rehab Keller case necessitates acknowledging that one reason the government follows the law is to make citizens aware of their responsibilities.

Laws enable individuals to prepare ahead and avoid criminal activities while adhering to needed ones.

However, the legislation must accomplish more than that. It should specify the consequences for violating the law’s provisions. 


In Cummings, the Supreme Court considered whether it should inform a Dallas-Forth Worth physical treatment business that it should have been aware violating the law would result in a particular punishment. 

The corporation was sued for discrimination for failing to provide an American Sign Language translator for Jane Cummings, deaf, during her firm appointments. 

Premier Rehab Keller did not contest whether it breached the requirements of the laws in this case.

Rather than that, the difficulty is none of the applicable anti-discrimination statutes specify precisely what redress, or in other cases, what punishment an offender should receive. 

The Supreme Court responded in a middle-of-the-road, confused manner. It was centered on a similarly confusing precedent established in Barnes v. Gorman, a 2002 decision. 

At the heart of the decision, the Supreme Court debated why the corporation was required to comply with these regulations, due to its receipt of federal funds in Medicaid and Medicare payments. 

Because the federal government needed adherence to these anti-discrimination regulations to receive federal funds, the corporation had the option of complying or not.

The court then applied contract law principles to assess whether the corporation might be held liable for causing Cummings mental anguish. 

While the court acknowledged the case law on this topic was not resolved, it determined the firm was not required to face litigation for those damages.

Nonetheless, the court found some justification for its decision in Barnes by concluding that unresolved damages should not be regarded as the norm. 

However, a more direct avenue existed that would have hindered concerns about government funding and associated contracting restrictions. Rather than that, these justices correctly identified a conflict between the separation of powers and the rule of law. 

Congress enacts legislation solely because the Constitution gives it legislative authority.

As previously stated, legislative authority encompasses both the authority to specify what should or should not be done and the authority to impose penalties for noncompliance.

Failure From Congress

Congress failed to carry out the latter point’s constitutional mandate. In Barnes and this instance, the court decided to “fill in” the gaps left by Congress. 

As the majority recognized tepidly at one point, and Justice Brett Kavanaugh stated more firmly, such action, however, constituted judges establishing law.

While the court made no judgment on what constitutes discrimination, it ruled what punishments should and should not be meted out in the event of such prejudice. 

Thus, the Supreme Court once again assumed the proper function of Congress. It violated the separation of powers by failing to exercise its statutorily defined judicial authority to interpret and apply the law. 

Given Congress’ habitual inactivity on legislation, it’s understandable that the executive and judicial branches would frequently seek to intervene to keep things running. 

However, breaking the separation of powers constitutes a violation of the rule of law. The rule of law is a critical, critical means of preserving our freedoms. 

That is, our political reps establish the rules that govern our lives. This means we can elect them or not, preserving power over the rules that govern our lives, including the penalties for breaking the law. 

The message to the judges should be straightforward: Stay in your lane and force Congress to act.