Donald Trump’s nomination of Neil Gorsuch to be the next Associate Justice of the Supreme Court is something that should cheer libertarians during a time when their hasn’t been much to cheer about. Judge Gorsuch has often been described as coming from the same mold as Antonin Scalia. But while both Scalia and Gorsuch have described themselves as originalists, Gorsuch’s sensibilities appear to be be far more libertarian than Scalia’s, whose sympathies tended to have a more of a majoritarian bent. Moreover, Gorsuch appears to part company with Scalia in an important area of Administrative law, namely the Chevron doctrine. More about Chevron later.
The hysteria generated by the nomination is impressive if for no other reason than the way it exposed left-wing gullibility. For example Salon managed to make Rolling Stone’s reporting look meticulously researched by comparison when they published and then retracted a claim that Gorsuch founded and led an organization named “Fascists Forever” while he attended an elite Jesuit prep school. The fact that the charge was taken with an ounce of seriousness, though obviously preposterous on its face, simply points to the credulousness of reporters who were only writing about fake news a couple of days ago.
It is understandable that Progressives are dismayed by the choice of Gorsuch to replace Scalia on the Court, because Gorsuch’s jurisprudence is a dagger pointed at the heart of the 100 year old Progressive Project. The underlying theory of that project is that government, staffed by the best and brightest, knows what’s best. And because government knows best, it will adopt the role of Plato’s Philosopher King and manage the lives of its citizens by controlling and limiting their choices through the regulatory mechanisms of the Administrative State.
It was then-Professor Woodrow Wilson (at Bryn Mawr 1887) who articulated the rationale for the bureaucracy that would grow into today’s beast. He argued that the complexities of modern life (remember this is in 1887) required a government by experts with large powers and unhampered discretion. The separation of powers that Madison devised to protect freedom by constraining government, was something to be scorned. It was simply an impediment to efficiency.
The huge, unaccountable and often coercive bureaucracy of the modern Administrative State is the result. Virtually every aspect of citizens’ lives is regulated various levels of bureaucracy. Obamacare, for instance, requires citizens to buy health insurance. The EPA determines how much water should be used each time a toilet is flushed. It is virtually impossible to build a bridge, road or pipeline anywhere without running into a wall of regulatory resistance. Couples without children are forced to buy health care insurance for the children they don’t have. Entry and exit into virtually every business in the country, from banking to nail salons to flower shops requires some sort of licensing by some government agency. Regulators have even shut down the occasional front-yard lemonade stand for reasons of non-compliance with some regulation.
One of the best measures of the growth of Administrative State is the size Federal Register, which contains proposed regulations from agencies, finalized rules, notices, corrections and presidential documents. The Federal Register was 2,620 pages long in 1936. By the end of 2015 it had topped 80,000 pages.
The National Association of Manufacturers estimated that the annual cost of regulations at about $2 trillion. Using a similar methodology, the Competitive Enterprise Institute estimated the annual cost at about $1.88 trillion. The Mercatus Center at George Mason University estimates that regulations that distort investment decisions have reduced average annual growth in the U.S. by 0.8% from 1977 to 2012.
These regulations are almost always marketed as regulations on businesses, but the reality is that the costs are almost always borne by consumers. Not only that, the well-connected are also accomplished at extracting economic rents through the strategic use of regulations, including the imposition of regulatory costs on their competitors. For their part, regulators are only too willing to play this game of regulatory capture because they travel back and forth between the bureaucracy and the businesses they oversee, supposedly on behalf of the people.
To make sure that the game goes on the Administrative Agencies have their own administrative courts, with the judges appointed by Agency heads. So the Agencies get to play judge, jury and prosecutor. And the (non-agency) courts have traditionally shown deference to Agency interpretations of regulations, thus closing the loop on citizens who naively believe that law-making should be done by the legislature and that the laws should mean what they say, rather than what some bureaucrat wants them to say.
That is where Judge Neil Gorsuch comes in. He has challenged the idea that the courts should show deference to government Agencies, a standard known as the Chevron doctrine, named after the Supreme Court’s ruling in Chevron v. Natural Resources Council (1984). In Chevron the Court ruled that courts must defer to an agency’s reasonable interpretation of an ambiguous statute that it administers. By 2005 that ruling had been broadened extended in NCTA v. Brand X Internet Services. In that case the Court held that courts must overrule their own interpretations about the meanings of existing laws in favor of later agency interpretations that satisfy Chevron.
Then in Gutierrez-Brizuela v. Lynch (2016) a unanimous panel granted an illegal alien’s petition for a review of a Board of Immigration Appeals order that denied his eligibility to apply for lawful residency. In a concurring opinion Gorsuch wrote that the Chevron standard “[permitted] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design”. He went on to call for the Supreme Court to reconsider the soundness of the Chevron doctrine. (See Ed Whelan in National Review for more detail on these and other relevant cases).
Writing in National Review, Ed Whalen summarizes these cases and goes on to argue that the Chevron rule of judicial deference is ideologically neutral. It depends, he writes, on who is running a given Agency at a given time.
I disagree with that part of his analysis.
The entire Progressive project requires a massive bureaucracy vested with substantial power and discretion to manage the Administrative State, and through it the lives of the citizens. Moreover, the Administrative State will necessarily struggle for dominance over those institutions of civil society that protect citizens’ individual freedoms. That is because the goal is efficiency in the Public Administration, not the protection of liberty that the Madisonian architecture of government demands. In the Administrative State freedom is neither real nor inherent; it is merely instrumental. Hence the hysteria by the left over Citizen’s United.
Free markets provide free choices for consumers, but they are an anathema to the command-and-control mentality of the Administrative State. Freedom of speech and assembly, and the right to the free exercise of religion means that citizens have an inherent right to those activities; those rights pre-exist government. It is the government’s responsibility to secure those rights. Legitimate government authority is limited to its enumerated powers in the Constitution. But religious institutions have a claim to a higher authority, which is why religious freedom is so important for individual freedom. It is why, for instance, government may not legally force a priest to testify about what he heard in the Confessional.
This does not sit well with secular progressives. Which is why there is on ongoing campaign to weaken religious institutions and diminish their authority by bending them to the will of the State. It is why, for instance, the Obama administration attempted to force the Little Sisters of the Poor to provide contraceptives and abortafacients against their religious objections. It is why John Podesta, as revealed in his leaked e-mails, was looking for a way to undermine the Catholic Church so as to make it a political instrument of progressives. And let’s not forget that it was Obama who dismissively referred to people who “cling to their guns and religion.”
Nor is government a neutral observer in the culture wars. It actively promotes a progressive agenda through the bureaucracy. That is why it forces bakers and photographers to participate in same sex wedding ceremonies rather than to carve out religious exceptions. Anyone who doubts this should ask why it was otherwise OK for pop singers, fashion designers and movie stars to refuse to participate in Trump’s inauguration ceremonies, but a photographer can be forced against his religious beliefs to participate in a wedding ceremony. Or, for that matter, why locker room use has become the current obsession of the left.
Anyway, back to Neil Gorsuch. In his writings he has challenged the Chevron doctrine. That doctrine has supercharged the growth of the Administrative State and the vast bureaucracy it depends on to rule. Moreover, he has made clear the importance he places on the free exercise of religion as guaranteed by the First amendment. For instance he ruled in favor of the Little Sisters of the Poor and Hobby Lobby. (A brief summary of his record on religious liberty cases is available here.) In a clash between government power and the free exercise clause, it is pretty clear where Gorsuch stands.
The modern progressive State needs a vast bureaucracy to rule. And this modern progressive bureaucracy is at war with the Constitution as it was originally written. The progressive dream (more like a nightmare to the community of the sane) of an efficient central bureaucracy to manage the country cannot be squared with the separation of powers embedded in the structure of the U.S. Constitution. The Constitution is the mechanism designed to secure the blessings of liberty promised in the Declaration of Independence. It is designed to constrain, not empower government, so that individuals can have maximum freedom to live their own lives as they see fit.
Judge Gorsuch’s defense of religious liberty, freedom of speech, for that matter the entire Bill of Rights, and his challenge to the Chevron doctrine and therefore the primacy of the bureaucracy over liberty make him a deadly threat to the progressive project. Which is why, despite his having graduated from Columbia, Harvard Law, and Oxford (for his D.Phil.), progressives will pretend that he is “out of the mainstream” and therefore not qualified to be an Associate Justice. The irony is that Judge Gorsuch is precisely the type of judge who gives every indication that he will not hesitate to rule against the Trump Administration as it seeks to increase executive power. Liberals ought to think about that; Progressives are probably too far gone.
Judge Gorsuch will become the next Associate Justice. The only question is whether or not the Democrats try to filibuster. If they do, Mitch McConnell will go for the nuclear option, using Harry Reid’s destructive precedent, and Gorsuch will be confirmed with less than 60 votes. Plenty of Republicans would like to see it happen this way, because it will make the (possible) second nomination that much easier.
While Libertarians ought to be pleased about the choice of Gorsuch, they ought to be wary of another procedural blocking point—the filibuster—falling by the wayside. We can add that possibility to the long list of destructive consequences arising from the work of Harry Reid.
JFB
P.S. The video below, well worth watching, is a discussion of Gorsuch’s nomination by Randy Barnett, the libertarian law professor from Georgetown.
