Supreme Court Targets
the Real Enemy
The Mighty Gorsuch vs.
the Administrative State: Quotes from West Virginia vs. EPA
BY JEFFREY A. TUCKER, JULY 1, 2022
The power of the
administrative state to destroy liberty and property – to blast through
legislation, science, and judicial oversight – was never more on display than
in the last two and a half years. One would hope that the deep bureaucracies
would have learned their lessons on how not to respond to a new pathogen. There
is no evidence they have.
Regardless, the real
problem is much deeper. It has to do with the status of the administrative
state as the effective governing apparatus of the US. It’s not Congress and not
the President. It’s the vast and permanent bureaucracy of 432 agencies and 2.9M
bureaucrats who are unreachable by any standard of personnel management.
Dealing with this problem absolutely requires that we get back to fundamentals on what kind of society we want and what is the role of government.
These issues are newly
alive, and have come up with a Supreme Court decision in West Virginia vs.
Environmental Protection Agency. The EPA had long imposed an expansive view of
its discretion under the Clean Air Act. The court said no: the EPA has been
acting illegally all along. This decision echoes a similar federal court
decision in Florida concerning the CDC’s mask mandate. The court said the CDC
is acting illegally.
Just because the EPA is
tasked with certain acts of administration doesn’t mean it can do whatever it
wants in service of the goal. “We would not expect the Department of Homeland
Security to make trade or foreign policy even though doing so could decrease
illegal immigration,” said the main opinion.
Clearly we have a
problem that cries out for a mighty rethinking of everything. Just such a
statement has been made in the concurring opinion of Justice Neil Gorsuch. Here
are some choice sections:
But no less than its
rules against retroactive legislation or protecting sovereign immunity, the
Constitution’s rule vesting federal legislative power in Congress is “vital to
the integrity and maintenance of the system of government ordained by the
Constitution.” It is vital because the framers believed that a republic—a thing
of the people—would be more likely to enact just laws than a regime
administered by a ruling class of largely unaccountable “ministers.” The
Federalist No. 11, p. 85 (C.Rossiter ed. 1961) (A. Hamilton). From time to
time, some have questioned that assessment.
And right here,
following great quotations from the Federalist Papers, Gorsuch adds a
devastating footnote, one of the best I’ve read in modern court documents. It
concerns the legacy of President Woodrow Wilson. Check it out:
For example, Woodrow
Wilson famously argued that “popular sovereignty” “embarrasse[d]” the Nation
because it made it harder to achieve “executive expertness.” The Study of
Administration, 2 Pol. Sci. Q. 197,207 (1887) (Administration). In Wilson’s
eyes, the mass of the people were “selfish, ignorant, timid, stubborn, or
foolish.” Id., at 208. He expressed even greater disdain for particular groups,
defending “[t]he white men of the South” for “rid[ding] themselves, by fair
means or foul, of the intolerable burden of governments sustained by the votes
of ignorant [African-Americans].” 9 W. Wilson, History of the American People
58 (1918). He likewise denounced immigrants “from the south of Italy and men of
the meaner sort out of Hungary and Poland,” who possessed “neither skill nor
energy nor any initiative of quick intelligence.” 5 id., at 212. To Wilson, our
Republic “tr[ied] to do too much by vote.” Administration 214.
Ouch. So much for the
Founding Father of Progressivism!
Gorsuch continues.
But by vesting the
lawmaking power in the people’s elected representatives, the Constitution
sought to ensure “not only that all power [w]ould be derived from the people,”
but also “that those [e]ntrusted with it should be kept in dependence on the
people.” Id., No. 37, at 227 (J. Madison). The Constitution, too, placed its
trust not in the hands of “a few, but [in] a number of hands,” ibid., so that
those who make our laws would better reflect the diversity of the people they
represent and have an “immediate dependence on, and an intimate sympathy with,
the people.” Id., No. 52, at 327 (J. Madison).Today, some might describe the
Constitution as having designed the federal lawmaking process to capture the
wisdom of the masses. See P. Hamburger, Is Administrative Law Unlawful? 502–503
(2014).
Admittedly, lawmaking
under our Constitution can be difficult. But that is nothing particular to our
time nor any accident. The framers believed that the power to make new laws
regulating private conduct was a grave one that could, if not properly checked,
pose a serious threat to individual liberty…. As a result, the framers
deliberately sought to make lawmaking difficult by insisting that two houses of
Congress must agree to any new law and the President must concur or a
legislative supermajority must override his veto.
Can I get a cheer?
Wow.
Permitting Congress to
divest its legislative power to the Executive Branch would “dash [this] whole
scheme.” …In a world like that, agencies could churn out new laws more or less
at whim. Intrusions on liberty would not be difficult and rare, but easy and
profuse. See The Federalist No. 47, at 303 (J. Madison); id., No. 62, at 378
(J. Madison). Stability would be lost, with vast numbers of laws changing with
every new presidential administration. Rather than embody a wide social
consensus and input from minority voices, laws would more often bear the
support only of the party currently in power. Powerful special interests, which
are sometimes “uniquely” able to influence the agendas of administrative
agencies, would flourish while others would be left to ever-shifting winds.
Finally, little would remain to stop agencies from moving into areas where
state authority has traditionally predominated.
Fascinating: this
sounds exactly like the world we’ve lived in since lockdowns!
He continues with a
history lesson, citing all the important law papers and books.
With the explosive
growth of the administrative state since 1970, the major questions doctrine
soon took on special importance…. In the 1960s and 1970s, Congress created
dozens of new federal administrative agencies. Between 1970 and 1990, the Code
of Federal Regulations grew from about 44,000 pages to about 106,000. Today,
Congress issues “roughly two hundred to four hundred laws” every year, while
“federal administrative agencies adopt something on the order of three thousand
to five thousand final rules.” Beyond that, agencies regularly “produce
thousands, if not millions,” of guidance documents which, as a practical
matter, bind affected parties too.
Finally:
And while we all agree
that administrative agencies have important roles to play in a modern nation,
surely none of us wishes to abandon our Republic’s promise that the people and
their representatives should have a meaningful say in the laws that govern
them…. When Congress seems slow to solve problems, it may be only natural that
those in the Executive Branch might seek to take matters into their own hands.
But the Constitution does not authorize agencies to use pen-and-phone
regulations as substitutes for laws passed by the people’s representatives. In
our Republic, “[i]t is the peculiar province of the legislature to prescribe
general rules for the government of society.” Because today’s decision helps
safeguard that foundational constitutional promise, I am pleased to concur.
To be sure, such high
philosophy and clear thinking on representative democracy does not on its own
dismantle the beast, but this case did rule against the EPA just as previous
decisions have ruled against the CDC. It’s a great start. More than that, the
Court seems finally to have gained clarity on the real problem, the complete
distortion of the system established by the Constitution’s framers in favor of
an indefensible dictatorship by the administrative state.
If this is where
American jurisprudence is headed – all in reaction to the utter shock that came
with the lockdowns and mandates – we have every reason for long-term optimism.
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