THE GORSUCH NOMINATION : NORMALITY; AND, THE “ADMINISTRATIVE STATE”

Neil Gorsuch

Right now the number one urgent need for politics in the United Stares is to reclaim normality. Those who are asking that Judge Neil Gorsuch, nominated to be a Supreme Court Justice, be blocked, or angry that hearings are even occurring, aggravate the abnormal situation we’ve had to endure now since the beginning of the Trump campaign, worsened by the Senate’s refusal last year to take up the Justice nomination of Judge Merrick Garland. Irresponsibility of this sort I condemned at the time. i condemn it now.

That the Gorsuch nomination exists solely because of the irresponsible act of last year;’s Senate is unfortunate, but said lack of fortune is no excuse, none at all, for deploying yet more politics of bad faith. It is good to see that most Democratic Senators are not taking that course. The loudest voices of activists now shout at us that the Gorsuch nomination must be put on hold because the President who nominated him is under FBI investigation for acts which, if proved, amount to treason. I disagree with this view. As long as Mr. Trump holds the office of Presi9dewnt, acts that he does pursuant, unquestionably, to his Constitutional powers, must be responded to with the same degree of Constitutional good faith.

If Mr. Trump is found to have committed acts which amount to impeachable offenses, and if he is then impeached, he will cease to hold the office of President; and no act of his thereafter will have any Constitutional effect. Until such event, t.he opposite must hold : that his acts have all the effect that Article 2 of the Constitution directs that they have.

The above seems almost too obvious to have to state; but it bears stating because our current politics so grievously lacks normality that even the most boringly normal of it needs to be called to the spotlight. Thus have I done.

The nomination of Judge Gorsuch is equally obvious. Hearings on conformation are obvious. It is good that the majority of Democrats are operating obviously. By doing so, they are helping to restore the nation to political health.

So much for the kudos. I wish I could say as much about the Gorsuch hearing itself. I cannot. The questions I have seen Democratic Senators ask have nothing to do with a Justice’s duties. Asking him if he will give a workingman as much of a shake as he might give to a corporation — as Senator Feinstein of California asked him — is fairly beside the point. A Supreme Court Justice’s job isn’t to give ANYONE a “shake,” it’s to decide how Constitutional precepts, if they’re at issue in a case, apply to the case. How they end up affecting a particular litigant is second hand; the Constitution’s principles and directives may not support the outcome that you want.  After all, there are always (at least) two sides to a case or controversy; and in our law, each side has an equal chance of having the Court decide for it, or against it. It may be great politics to advocate for “the little guy” — one should always stand for the underdog — but Court decisions shouldn’t be mainly political (politics will always be a factor in them, because politics generally arise from disputes), they should be mainly judicial. One hopes that before the Gorsuch hearings end he will be asked about his jurisprudential principles: because he does have them, and to an advanced degree, and because the principles that he holds matter, a lot.

So far I have heard no questioner focus on the REAL import of the Gorsuch nomination. More about that below. First I wnat to offer two links for furtyher research :   (1 ) Yesterday I posted at facebook, on my own page, several of Judge Gorsuch;’s 10th Circuit opinions and concurrences. (You can read many of them here : http://www.gibsondunn.com/publications/Pages/Summaries-of-Opinions-of-Supreme-Court-Nominee-Judge-Neil-Gorsuch.aspx   ( 2 ) You can also read Eric Citron’s in-depth examination of Gorsuch;’s jurisprudence in action at SCOTUSblog here : http://www.scotusblog.com/2017/01/potential-nominee-profile-neil-gorsuch/

What do we learn from reading these two summaries and analyses ? Chiefly this : Gorsuch’s most significant opinions affect Administrative Law. His view is that administrative agencies may not develop their own interpretations of Federal Laws under which they administer, and , especially, may not set aside a Supreme Court ruling governing administrative regulation, but must, instead, write regulations conformable to such Supreme Court opinion. Gorsuch applies this restriction upon administrative prescription even where the applicable Law is worded ambiguously.

Given Mr. Trump’s active dislike of “the administrative state,” is it a stretch to conclude that it is for his administrative law rigor that Gorsuch was nominated ? Limiting the “administrative state,” we have seen, is a key objective of Mr. Trump’s top advisor, Steve Bannon.

Is Gorsuch’s textual rigor about administrative regulations issued pursuant to a Law a bad thing ? That depends on where your interests lie. Constitutionally, it is indisputable that under Article 2, a President must “take care that the laws be faithfully executed.” By what argument is it allowable, under that standard, that an executive agency “executing the Laws” add its own interpretation of a Law to its enforcement ?

This is hardly an obscure question. Agency power in our age of complex, ubiquitous Federal Law affects almost everybody. How many of us have not had encounters with a Federal agency ? How many of these encounters end up not frustrating you, or making your life or work more difficult ? For businesses, which create all kinds of processes spread over many jurisdictions, conflict with this or that administrative rule is almost a daily event. Certainly it is crucial that agencies charged with “faithfully executing the Laws” must have rules and must use them, or the Laws are nothing but paper tigers; yet Gorsuch has a point : if we who are subject to agency regulations intended as a faithful execution of the Laws cannot rely on their consistent application — if instead we are met by arbitrary and/or changing enforcements — the Laws become an impediment to, not a safeguard of. our responsibility to the society. Such would seem to be Gorsuch’s view. We have agreed to the Laws enacted by Congress; we have not willy nilly agreed to how the agencies enforcing them see them.

Your view of agency law may differ from Gorusch’s. Mine may differ from it too. But his view is a serious one entitled to be respected by the other eight Justices if he is confirmed. His view certainly belongs in the Court’s deliberations. In any case, this is the Gorsuch whose jurisprudence ought be questioned in his confirmation hearing. So far I have heard nothing to indicate that the Judiciary Committee even gets the point.

—- Mike Freedberg / Here and Sphere

 

 

 

 

Author: hereandsphere

Here and Sphere is an online journal of news, opinion, reviews, advice, & bits n' pieces of everything else - from HERE to SPHERE...... Co-founded by Michael Freedberg, a long-time Boston Phoenix journalist, and Heather Cornell, a South Coast Massachusetts columnist and editor.

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