From two lawyers who know how to write–Emily Bazelon and Eric Posner–comes this essay about the administrative state and how Neil Gorsuch is on a judicial path to threaten it.
Their piece is a fascinating, remarkably concise history of how government agencies and federal regulations came into existence (during FDR’s New Deal) and have been legally challenged ever since by the relentless conservative passion to deregulate (spurred on by Reagan).
It’s a war, in other words, between us individual citizens (protected and defended by the federal government) and big business.
I guess most of us tend to oppose Gorsuch’s nomination for civil rights reasons. They’re personal and palpable to each of us. And Gorsuch’s judicial lean is certainly against protecting the rights of individuals in favor of corporations, i.e., massive amounts of money.
But by summarizing and emphasizing one Supreme Court decision, Chevron, this article tells us specifically how Gorsuch would be utterly destructive to more than our civil rights. His judicial “philosophy” could destroy the federal agencies and regulations that are our guardian angels.
As Bazelon and Posner write:
It turned out that the public often likes regulation — because it keeps the air and water clean, the workplace safe and the financial system in working order. Deregulation of the financial system led to the savings-and-loans crisis of the 1980s and the financial crisis a decade ago, costing taxpayers billions.
I started to extract a few important points and discovered that I couldn’t: every sentence is important. So read the entire piece. It’s a sterling, free education in philosophies of governance and why we must defend one against the other by opposing Gorsuch now, and remain vigilant for the future.
Here are the beginning paragraphs and part of the final one:
At recent Senate hearings to fill the Supreme Court’s open seat, Judge Neil Gorsuch came across as a thoroughly bland and nonthreatening nominee. The idea was to give as little ammunition as possible to opponents when his nomination comes up this week for a vote, one that Senate Democrats may try to upend with a filibuster.
But the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.
…What would happen if agencies could not make rules for the financial industry and for consumer, environmental and workplace protection? Decades of experience in the United States and around the world teach that the administrative state is a necessary part of the modern market economy. With Judge Gorsuch on the Supreme Court, we will be one step closer to testing that premise.