Happy Independence Day: "The time has come to face the behemoth"

Gorsuch can help us declare independence from the administrative state
BY ERIN HAWLEY, OPINION CONTRIBUTOR

July 4, 2017 - 12:00 PM EDT

The Hill

The Fourth of July is a celebration of America’s Declaration of Independence from the tyranny of the British crown. Today, Americans face a different, less-obvious threat to their independence: the administrative state, a vast network of powerful government regulatory offices and agencies.

The Supreme Court, and in particular its newest member, Justice Neil Gorsuch, can help America secure its hard won freedom and restore our government to its rightful, liberty-enhancing design of enumerated and separated powers.

Our high school civics teachers taught us that Congress writes the law, the Executive enforces the law, and the Judiciary interprets the law, but the reality is that the vast majority of enforceable legal rules are written, not by Congress, but by administrative agencies. Those same agencies then enforce the rules they have written against individuals and businesses. And if and when a federal court reviews an agency rulemaking or enforcement action, it does so with one hand tied behind its back. Since the 1984 decision in Chevron USA vs. Natural Resources Defense Council, the so-called Chevron doctrine requires courts to defer to an agency’s interpretation of a statute or regulation.

Our Founders would be rolling over in their graves. In Federalist 47, James Madison famously argues that “[n]o political truth is certainly of greater intrinsic value,” than the separation of powers. He was particularly worried about the accretion of government power: the “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”

Thus the Framers separated the powers of our government: first, vertically between the federal government and the states. And second, horizontally between three coequal branches of government — each with the power to act as check and balance against the abuse of power.

By combining all three government powers, the administrative state puts serious pressure on the separation of powers, but there is reason to hope: With the confirmation of Justice Gorsuch, those who are wary of the growing powers of the administrative state have a new ally on the Supreme Court.

The newest justice is on record as a skeptic of the administrative state’s broad powers. In an August 2016 case from the Tenth Circuit, Guiterrez-Brizuela v. Lynch, Justice Gorsuch took the unusual step of concurring in his own majority opinion to explain why the administrative state is in serious tension with separation of powers principles. In his view, deference doctrines like Chevron are particularly suspect because they “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power … seems more than a little difficult to square with the constitution of the framers’ design.”

Justice Gorsuch argued that federal courts must “interpret” statutory provisions under the Administrative Procedure Act, not defer to agency interpretations. He also suggested that Chevron requires federal courts to abdicate their constitutional duty to interpret the law. The Constitution, in his view, does not allow federal courts to give away their authority “to say what the law is.”

The Founders' key insight was not the Bill of Rights — though those protections are crucial — but rather the constitutional structure. As they recognized, individual rights are meaningless if they may be ignored by a centralized government without checks and balances.

As the Supreme Court has acknowledged, we might have a hard time functioning without the administrative state. But acknowledging that administrative agencies are a large part of the government today does not freeze in place administrative law doctrines that are in tension with other statutes or the Constitution. Maybe, just maybe, as Justice Gorsuch wrote of the administrative state in Gutierrez, “the time has come to face the behemoth.” If we can defeat the British, we can surely face this.

Erin Morrow Hawley is an Associate Professor of Law at the University of Missouri. Professor Hawley teaches constitutional litigation, federal income tax, tax policy, and agricultural law. She has practiced appellate law at King & Spalding and Kirkland & Ellis LLP. She also worked at the Department of Justice as counsel to Attorney General Michael Mukasey and was a former clerk to Chief Justice John G. Roberts Jr. of the Supreme Court.

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