Our Constitution makes Congress the first branch of government, but the Capitol is today regarded almost as a house of ill-repute, both for the character of its members (not necessarily ours, but theirs) and its general contribution (or lack thereof) to the national well-being. As a legislature, its primary means of asserting itself must be to pass legislation, but it has become infamously inept in that work in this age of severe polarization and powerful interest groups happy to block changes to a status quo they find lucrative. Given the apparent permanency of these underlying factors, many observers now see the waning of Congress’s importance as both inevitable and unequivocally desirable.
I have very fond memories of the late Chuck Berry, deceased this past weekend at the age of 90. His music changed my life, from my ill-spent youth to the AdLaw lessons I seek to convey in my dotage.
As the Senate prepares to question Judge Neil Gorsuch for possible appointment to the Supreme Court, my former colleague Eric Posner asks: “Is Gorsuch a Hamburgerian?” Posner thereby attempts to set up Gorsuch by associating him with . . . not really me, nor my scholarship, but a boogeyman of Posner’s imagination.
The version of my scholarship Posner presents to the world is almost unrecognizable: “Hamburger is anti-elite”; “Hamburger is anti-foreigner”; “Hamburger is anti-executive.” These views bear no resemblance to my scholarship or my personal opinions, and it therefore is necessary to state my views as they really are.
We usually assume that legislators write laws to be understood. But cases exist in which legislators write less clearly rather than more clearly. Well known and often discussed are the whys and wherefores of legislative delegation to executive agencies. Without intending a comprehensive list, here are a couple of other reasons why legislators write more ambiguously rather than less.
As the confirmation battle over 10th Circuit Judge Neil Gorsuch—Donald Trump’s nominee to fill the late Antonin Scalia’s Supreme Court seat—takes shape on cable news shows and across newspaper opinion pages, phrases like “judicial restraint” and “judicial activism” dominate much of the discussion.
While anyone you ask will agree that restraint is good and activism bad, and that judges should be careful not to usurp lawmaking authority from the people’s duly elected representatives, it’s often difficult to figure out exactly what people mean when they give their opinion on this subject. All too often, calls for judicial restraint or deference are not about dispassionately applying the law and leaving the policy decisions to Congress; they are calls for blind rubber-stamping of governmental action.
Judge Neil Gorsuch of the Tenth Circuit Court of Appeals is by virtually every account a stellar jurist. His writings are now being mined, by supporters and opponents alike, for evidence of his commitment to judicial restraint and the separation of powers.
That evidence is not hard to find. In an address delivered on April 27, 2016, Gorsuch spoke of “the great project of Justice Scalia’s career,” namely to expound “the differences between judges and legislators.”
Do we need a theory of managerial class disintegration? Such an ambitious question can at the least be ventured given our headlines: Brexit, Trump, Le Pen, the European Union and the larger rise of the Euronationalist parties, and the questioning of postwar international institutions, to name a few.
In Monty Python’s immortal words I’m not dead, yet; but I don’t have much insight into the new political era, either. I therefore commend to your attention a sensational essay by someone who does: “Regulatory Reform,” by Christopher C. DeMuth. One of Chris’s best pieces ever, and that is saying something. Under a cheekily acronymed REFORM Act (Referrals from the Executive For Regulatory Modernization):
[T]he president would refer selected regulatory reforms to the House and Senate and urge their prompt consideration and approval. Where an agency rule departed from a reasonably clear statutory provision, or from judicial interpretations of a broad or ambiguous provision, the agency would explain the departure and the reasons for its new approach. The reasons could not, for the REFORM procedure, be sheer policy preference—rather, they would be limited to improving the agency’s pursuit of the missions Congress had already assigned to it. […] Congress would approve the rule itself, not just its issuance. And, in cases of uncertain statutory authority, the submitted rule would be accompanied by suggested, surgical statutory revisions, and Congress could enact the revisions along with its approval of the implementing rule.
With characteristic verve, sophistication, and political horse sense, DeMuth explains how and why this might actually work, and why it would be a very good thing.
What are the prospects for constitutionalism and the rule of law under President Donald Trump?