Editor’s note: This article is adapted from Neil Gorsuch’s book A Republic, If You Can Keep It, which will be published this month.
The separation of powers and its role in protecting individual liberty and the rule of law can sound pretty abstract. I confess it seemed that way to me in my high-school civics class. I came to appreciate the genius of the Founders’ design more fully only years later, when as a judge I saw what happens to real people in real cases when the separation of powers goes unattended. Let me share with you a few of their stories, some of which you will see laid out more fully later. They’re just a sampling of so many that came across my desk.
Caring Hearts. Caring Hearts is a small business in Colorado that provides Medicare nursing services to the elderly. One year, the government performed an audit and concluded that Caring Hearts had improperly billed hundreds of thousands of dollars of services, so it slapped a fine of over $800,000 on the company. The trouble was, the government applied the wrong rules. Instead of applying the regulations in effect during the time Caring Hearts provided its services, it faulted the company for failing to abide more-onerous rules that the agency adopted only years later. How did the government get its own rules so wrong? Every year, the executive agency administering Medicare has used the legislative authority delegated to it by Congress to issue a river of legally binding regulations and thousands more “sub regulatory guidance documents” to explain those regulations. The agency had apparently written so many new legally binding rules that even it had lost track of all the changes.
Miguel Games-Perez. A federal prosecutor charged Mr. Games-Perez with “knowingly violat[ing]” a statute that makes it a crime to be (1) a felon and (2) in possession of a firearm. But the prosecutor failed to produce any evidence that Mr. Games-Perez knew he was a felon. In fact, at the time of his earlier conviction, the judge expressly (but erroneously) told Mr. Games-Perez that if he agreed to plead guilty (as he eventually did), he would leave the courtroom “not convicted of a felony.” Still, rather than concede its inability to prove an essential element of the crime charged, the federal government invited judges to rewrite the law. The statute would be a better one, the government essentially told the Tenth Circuit, if it required the prosecution to prove only that Mr. Games-Perez knew he was in possession of a firearm. My court, relying on circuit precedent I thought mistaken, agreed. And so Mr. Games-Perez was sent to federal prison for violating a “statute” effectively written by judges rather than legislators, one neither Mr. Games-Perez nor anyone else could have found and taken notice of in the United States Code before the conduct leading to his “offense.”
Alfonzo De Niz Robles. Mr. De Niz Robles is a Mexican citizen, married to a U.S. citizen, and the father of four U.S. citizens. Hoping to apply for lawful residency, he faced two competing federal statutory provisions that confused his path. The first seemed to suggest the government was free to adjust his status immediately and allow him to remain in this country. The second seemed to suggest he had to leave the country for at least a decade before applying for admission. In 2005, the Tenth Circuit held that the first statute trumped the second. Relying on that declaration of the law, Mr. De Niz Robles unsurprisingly decided to apply for an immediate adjustment of status. But then, years later, an administrative agency issued an edict purporting to “overrule” the Tenth Circuit’s precedent on which Mr. De Niz Robles had relied. The agency said Mr. De Niz Robles and immigrants like him must always satisfy the ten-year waiting period outside the country. So, in essence, an executive agency claimed the power to overrule a judicial decision and tell Mr. De Niz Robles that he’d have to start the decade-long waiting clock now, after an eight-year wait for the agency’s decision — even though if he’d known that was his only option at the beginning, his wait would’ve been nearly over.
At first, these stories might seem unrelated. They arise in different areas of law and implicate different questions of social policy. One is about Medicare and government contracts, the next about criminal law, the last about immigration. But despite their surface differences, over time I came to realize that cases like these reflect the same underlying problem: a mixing of what are supposed to be separated powers in ways that undermine the rule of law and diminish liberty. In the first case, the legislature delegated its lawmaking powers to the executive — and the result was that lawmaking had become so easy and came so quickly that no one could keep up with all the new restrictions. In the second case, the judiciary rewrote the legislature’s statutes to make “better” policy, even though it meant sending a man to prison for breaking a law nowhere in the books or approved by the people’s representatives. In the third case, the executive assumed the judicial power “to say what the law is” and left a family without fair notice of its demands on them. It’s one thing to study the theory of the separation of powers. For me, it was another thing to witness how its disregard affects the lives of real people in real cases.
Excerpted from A Republic, If You Can Keep It by Neil Gorsuch. Copyright © 2019 by Neil Gorsuch. Excerpted by permission of Crown Forum. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.