Authorization Required: Veterans Treatment Courts, the Need for Democratic Legitimacy, and the Separation of Powers Doctrine

What limits do judges have when creating specialty courts such as Veterans Treatment Courts (“VTCs”)? Many states have virtually no limits. I argue that states should enact legislation authorizing the creation of VTCs to maintain democratic legitimacy and ensure that the judiciary respects the separation of powers doctrine. VTCs represent an innovative and courageous approach to treat and rehabilitate veterans who have committed certain crimes by acknowledging the underlying mental health effects that can result after combat experiences and trigger criminal behavior. In many states, however, judges create these courts without legislative authorization. Without legislative authorization, judges have almost unlimited power to establish these courts, as well as to determine their structures, rules, and procedures. Allowing for unlimited judicial power diminishes democratic legitimacy and often creates separation of powers issues. First, legislation lends VTCs democratic legitimacy. Legislation allows a democratically elected legislature to set forth basic requirements and procedures for the courts, thereby ensuring that judges do not have unlimited power in establishing them. Legislation also helps usher in the systematic changes that these courts achieve as specialized problemsolving courts that aim to treat veterans who have committed certain  Sohil Shah, J.D., Emory University School of Law (2014); B.A., Northwestern University. I am grateful to our soldiers and veterans for their service to our country. I thank the judges, staff, and other members of the Veterans Treatment Court system as well as other professors and lawyers for sharing their knowledge and experience. I also thank the staff and Executive Board of the Southern California Interdisciplinary Law Journal for their hard work, time, and assistance with editing this piece. Finally, I thank my parents for their love and support––I would not be where I am without you. Contact: [email protected] / [email protected] SHAH PROOF V3 12/2/2013 1:33 PM 68 Southern California Interdisciplinary Law Journal [Vol. 23:67 crimes. Second, legislation ensures separation of powers between the legislative and judicial branches of our government. Legislation acknowledges the historic tradition of separation of powers by setting forth a change in the criminal justice system pursuant to public advocacy. Separation of powers also requires distinct law-making power in the legislative branch. Legislation, therefore, prevents judges from usurping that law-making power by setting up these courts independently and without oversight.