A response to Eric Posner
You’ll be relieved to learn that we no longer need to listen to the wisdom of the Founders, in part because they wore breeches and wigs. Their style of dress undermines the relevance of their thought.
At least that’s what University of Chicago law professor Eric Posner says today in the New York Times.
The purpose of his sartorial rant is a defense of the administrative state, the burgeoning bureaucratic beast that is consuming America’s lawmaking functions and all too often rendering Congress an afterthought.
This term, the Supreme Court is considering two cases that could roll back some small part of the executive branch’s regulatory discretion, and Posner rallies to the presidency’s defense. He attacks an allegedly “reactionary” Supreme Court that’s focused on the “legalistic” constitutional structure, as opposed to his preferred regulatory regime.
In other words, he looks at today’s immense executive branch — and the breathtaking amount of power granted to unelected bureaucrats — and says, “Yes, please.”
Here’s how he frames the legal dispute. After noting the growth of regulatory agencies during the New Deal, he says this:
The New Deal agencies initially encountered resistance from the Supreme Court, which was then, like now, a reactionary institution that frowned on novelty. For one thing, when agencies issue regulations, they make law, which was the traditional prerogative of Congress. Moreover, the agencies were mostly overseen by the White House, which is not supposed to make law. And Congress also gave many regulatory agencies some autonomy — protecting staff from removal, for example — that seemed to infringe on the president’s authority to supervise the executive branch.
Eventually, common sense prevailed over these legalistic objections. Congress itself lacked the capacity to engage in the detailed regulation that is necessary to keep a modern economy humming while protecting workers and consumers. Agencies were needed. The executive branch was the sensible place to house agencies because the agencies combined both policymaking and enforcement functions. And agencies need some protection from political meddling. [Emphasis added.]
Right there, in two paragraphs, Posner summed up key differences between originalists and their opponents. The originalist looks at the text, history, and structure of the Constitution and evaluates legislation in light of that law. Too many progressives look at the same words on the same page, and respond with “Nah, there’s a better idea.”
Notice Posner’s objection to the Court’s constitutionalism. It’s about “common sense.” It’s about what’s “necessary” for the modern economy. But federal judges don’t sit as courts of common sense. They are not qualified to devise the ideal American system for economic growth.
Posner notes that a number of Supreme Court justices have expressed skepticism about the constitutionality of a number of aspects of the administrative state. Yet rather than deal seriously with their objections — or seriously with the reasons for the Founders’ decisions — Posner locates conservative objections in a wistful longing for the past:
The modern conservative jurisprudence is an exercise in nostalgia, a yearning for pre-New Deal America when, supposedly, government was less oppressive and people were freer than they are today. You can see this nostalgia in the homilies to olden times in Justices Gorsuch’s and Kavanaugh’s lectures — and their insistence that answers to today’s challenges can be found in a theory of government invented in the 18th century by men wearing breeches and powdered wigs.
You can almost feel the condescension. This is the legal academic’s equivalent of the Monty Python sneer that “Strange women lying in ponds distributing swords is no basis for a system of government.” Those Founders looked funny. They wore old clothes.
Perhaps — just perhaps — there are enduring reasons for the separation of powers. Perhaps concentrating legislative power in Congress — the branch of government closest to the people — helps protect liberty and ensure democratic accountability. But rather than fully answer Posner myself, I’ll defer to Justice Neil Gorsuch, who articulated better than I can just a few of the problems with excessive legal deference (the infamous Chevron doctrine) to the administrative state:
Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions. Under Chevron the people aren’t just charged with awareness of and the duty to conform their conduct to the fairest reading of the law that a detached magistrate can muster. Instead, they are charged with an awareness of Chevron; required to guess whether the statute will be declared “ambiguous” (courts often disagree on what qualifies); and required to guess (again) whether an agency’s interpretation will be deemed “reasonable.” Who can even attempt all that, at least without an army of perfumed lawyers and lobbyists? And, of course, that’s not the end of it. Even if the people somehow manage to make it through this far unscathed, they must always remain alert to the possibility that the agency will reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail.
An increasing number of Americans — on both sides of the aisle — are beginning to understand that congressional impotence is harmful to American democracy. The most powerful branch (according to the Constitution) is now the least consequential, and it is subverting the American constitutional order. It’s expanding the presidency and the courts outside of their intended boundaries, and our very system is under strain. When designing a national government, there is more at stake than the efficiency of economic regulation or the expertise of any given regulator.
So, no, it is not a matter of “common sense” that we continue down this bureaucratic path. No, it’s not a “sham” to argue that Congress — not the president — should make American law. It’s a serious system designed by serious people. In 1794, Alexander Hamilton famously wrote, “If it were to be asked, What is the most sacred duty and the greatest source of security in a Republic? the answer would be, An inviolable respect for the Constitution and Laws — the first growing out of the last.”
He was right then, and he’s right now. In the fight between the Founders and Posner, I’ll take the Founders every time — even if they did wear breeches and wigs.