Law & the Courts

Former Ninth Circuit Executive Offers Appalling—and Revealing—Defense of Reinhardt

This five-paragraph letter to the editor by Cathy Catterson, the circuit executive (top manager) of the Ninth Circuit from 2007 until 2017, is remarkable—but not for the reasons Catterson intends.

Catterson is responding to a Los Angeles Times article last week that reported that more than 70 former law clerks to the late Ninth Circuit judge Stephen Reinhardt signed a letter “expressing support for a woman [Reinhardt’s former law clerk Olivia Warren] who said Reinhardt sexually harassed her.” (I highlighted Warren’s powerful testimony about Reinhardt’s outrageous behavior in this post two weeks ago.) Specifically, the former clerks affirm that they “believe [Warren’s] testimony,” they thank her for “her courage in speaking out,” and they attest that some of them (but not others of them) “experienced or witnessed conduct in chambers [i.e., by Reinhardt] that we would call sexist, workplace bullying or mistreatment.”

That same article also presents another former law clerk’s account of “belittling, bullying and sexist” behavior that she experienced from Reinhardt more than two decades ago.

In the face of these statements by law clerks who worked with Reinhardt day in and day out, Catterson offers not one word of sympathy for Warren. She professes herself agnostic on the truth of Warren’s account while offering no reason that anyone should disbelieve Warren. Instead, Catterson somehow has the gall to fault Warren for testifying before Congress (“I regret that she believed this was the best way to air her grievances, almost two years after Judge Reinhardt’s death”) and for disturbing her own memory of Reinhardt:

I have tremendous respect and admiration for Judge Reinhardt’s legacy, and I know there are many others who share these views. Let him rest in peace.

Catterson even invokes her own supposedly superior insights into “the judge I knew for almost 40 years,” but doesn’t disclose to the reader that she was based in San Francisco all that time while Reinhardt had his chambers in Los Angeles.

Two broader observations:

1. Catterson’s rush to protect Reinhardt amply vindicates Warren’s judgment that she couldn’t report Reinhardt’s misconduct to Ninth Circuit officials “because it was very clear how beloved Judge Reinhardt was and I could not trust that they would receive the information confidentially or with an open mind.” (Testimony at 15.) It also illustrates Warren’s concerns about the “systemic barriers to reporting harassment and misconduct by judges that are unique to the legal profession, and uniquely formidable in the context of the relationship between law clerk and judge.” (Testimony at 12; see generally pp. 11-17.) In any effort to improve the process, Catterson’s letter should be taken into account as showing a problem that needs to be addressed.

2. Five years ago, in a piece jointly published in the legal journals of San Francisco and Los Angeles, I reported how the remarkable good fortune that Reinhardt seemed to have in getting assigned to sit on ideologically charged cases owed in part to a longstanding but undisclosed practice that the Ninth Circuit clerk’s office had for assigning expedited cases. That practice, I pointed out, was rife with potential for abuse and seemed to have been applied selectively to direct cases to Reinhardt. I also highlighted an academic study that concluded that case assignments in the Ninth Circuit were ideologically skewed in their deviation from what random assignments would generate. I observed that court clerks “are people, too [and] have their biases and their temptations to indulge their biases, especially when they think they can get away with it.” I called for the Ninth Circuit to conduct a thorough investigation of how its case-assignment process has in fact operated.

Catterson headed the Ninth Circuit clerk’s office from 1985 to 2007 before being named to the new position of circuit executive (where she, among other things, hired and supervised her successor as court clerk). Her fondness for Reinhardt personally and her open “admiration” for his liberal judicial “legacy” mean that she had the motive as well as the opportunity to abuse the case-assignment process to favor him. Her peculiar judgment in writing her letter to the editor reinforces suspicions that she might have sought opportunities to indulge her biases.

It’s long past time for the Ninth Circuit to carry out a serious investigation into the irregularities that occurred under Catterson’s watch.

Law & the Courts

This Day in Liberal Judicial Activism—February 27

1998—In Brause v. Bureau of Vital Statistics, Anchorage trial judge Peter A. Michalski rules that Alaska’s statutory definition of marriage as between “one man and one woman” violates the state constitution unless Alaska can show a “compelling state interest” in support of its definition. In November 1998, Alaska voters approve, by a 68% to 32% margin, a state constitutional amendment defining marriage as between a man and a woman.

Law & the Courts

This Day in Liberal Judicial Activism—February 26

The front gate at the Taconic Correctional Facility in Bedford Hills, N.Y. (Carlo Allegri/Reuters )

2018—By a 4-3 divide, the California supreme court holds (in People v. Contreras) that very long sentences imposed on two juvenile offenders for brutal rapes violate the Eighth Amendment of the federal Constitution. According to Goodwin Liu, the justice who wrote the majority opinion, the two sentences (one of 50 years to life, the other of 58 years to life) are “functionally equivalent” to sentences of life without parole and thus are impermissible under the U.S. Supreme Court’s 2010 ruling in Graham v. Florida.

In dissent, chief justice Cantil-Sakauye objects that the majority misreads Graham by extending it beyond actual sentences of life without parole to sentences that are “qualitatively different.” She further points out that, contrary to Liu’s assumption, both offenders will be eligible for parole no later than age 60.

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This Day in Liberal Judicial Activism—February 25

Supreme Court Justice Clarence Thomas (Jonathan Ernst/Reuters)

1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left. As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one: Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury? The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court. Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view. He also declares: “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.

The next day, this hitherto obscure case is featured in the lead article on the front page of the New York Times. Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court. She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.” Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion. She also highlights a supposed “close alliance” between Thomas and Scalia.

One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.” The editorial feigns “crashing disappointment” with him. Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.

2019—Ninth Circuit judge Stephen Reinhardt probably holds the record for the most unanimous reversals by the Supreme Court, so it’s only fitting that he somehow managed to rack up another one in an opinion issued in his name eleven days after his death.

“Federal judges are appointed for life, not for eternity.” That’s the punchline in the Supreme Court’s per curiam ruling in Yovino v. Rizo. The Court vacates the Ninth Circuit’s en banc ruling issued on April 9, 2018. Reinhardt died on March 29, 2018, but the Ninth Circuit listed him as the author of the six-judge majority opinion.

Law & the Courts

‘People of All Genders Can Become Pregnant’

This pearl of politically correct obtuseness from Ninth Circuit judge Richard Paez’s dissent (p. 2, note 2) in today’s Title X ruling deserves more prominence than my belated addendum to my original post:

While the [Title X] Rule disproportionately impacts women, people of all genders rely on Title X services, can become pregnant, and will suffer the consequences of the Rule. See, e.g., Cal. Code Regs., tit. 2, § 11035(g) (defining individuals eligible for pregnancy accommodation as including “transgender employee[s] who [are] disabled by pregnancy”); Jessica A. Clarke, They Them, and Theirs, 132 Harv. L. Rev. 894, 954 (2019) (“People of all gender identities can be pregnant[.]”); see also Juno Obedin-Maliver & Harvey J. Makadon, Transgender Men and Pregnancy, 9 Obstetric Med., 4, 5 (2016).

Yes, women who don’t identify as female can still get pregnant—because they are women.

Law & the Courts

Certiorari Petition on Mandatory Bar Associations Post-Janus

In its 2018 ruling in Janus v. AFSCME, the Supreme Court held that public employees have a First Amendment right not to be compelled to subsidize union speech on matters of substantial public concern. This interesting certioriari petition in Fleck v. Wetch, filed by the Goldwater Institute on behalf of a North Dakota attorney, presents the question whether post-Janus a state can force attorneys to join, and thus subsidize the political speech of, bar associations as a condition of practicing law.

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‘Actually Innocent of His Sentence’?

I confess that I’m not up to speed on all the ways that various judges work to evade limitations on granting habeas relief. But sometimes ugly and ungrammatical locutions give the game away.

In a divided Ninth Circuit decision today in Allen v. Ives, Judge William Fletcher, writing for the majority, addresses Allen’s claim that he is (in Fletcher’s summary) “‘actually innocent’ of his sentence as a career offender.” Elsewhere in his opinion, he speaks of being “actually innocent of the enhancement.” He tries to recast both concepts as being “actually innocent of being a career offender.”

But Allen isn’t making the factual claim that he didn’t commit the state-law crime that served as the predicate crime for career offender status. He is instead making the legal argument that the crime for which he was convicted doesn’t qualify as a predicate crime. Fletcher evidently can’t entertain that claim without butchering both the law and the English language.

In her dissent, Judge Callahan faults the majority for an “expansion of actual innocence jurisdiction [that] is inconsistent with both Supreme Court and Ninth Circuit precedent.” She also expresses alarm that the majority “opens the proverbial floodgate for habeas petitions under the [actual-innocence] escape hatch.”

Mark this one for en banc rehearing.

Law & the Courts

Ninth Circuit Allows HHS Title X Regulations to Take Effect

Title X of the Public Health Service Act authorizes the Department of Health and Human Services to make grants to support voluntary family planning but prohibits grant funds from being used in “programs where abortion is a method of family planning.” In an important victory for the Trump administration—and a big defeat for Planned Parenthood—the Ninth Circuit ruled today (in California v. Azar) that the HHS’s regulations implementing Title X are lawful.

The Ninth Circuit divided 7 to 4 along ideological lines (or at least along lines of party of appointing president). Judge Sandra Ikuta penned the majority opinion and was joined by Judges Leavy, Bybee, Callahan, M. Smith, Miller, and Lee. (The latter two are Trump appointees.) Judge Richard Paez wrote the dissent, joined by Chief Judge Thomas and Judges Wardlaw and Fletcher.

The Chief Judge is automatically on every limited en banc panel. The fact that seven of the other ten judges drawn to be on the panel were appointed by Republican presidents surely owes to President Trump’s success in markedly increasing the size of that cohort: from 7 to 13 of the 29 judges in active service. (The draw occurred some time last summer; there were probably only 11 or 12 Republican appointees at the time of the draw.)

In her majority opinion, Judge Ikuta explains that the Title X regulations are similar to those upheld by the Supreme Court in Rust v. Sullivan in 1991, and that they are in fact “less restrictive in at least one important respect: a counselor providing nondirective pregnancy counseling ‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion.’” There therefore “is no ‘gag’ on abortion counseling” (even if one were to adopt the dubious position that a refusal to provide funding amounts to a “gag”).

Ikuta rejects arguments that two intervening congressional enactments render Rust’s holding no longer valid (pp. 32-48) and that the regulations are inconsistent with a provision in the so-called Affordable Care Act (pp. 49-58). She also rejects administrative-law claims that the Title X regulations are in various respects arbitrary and capricious (pp. 59-81).

In his dissent, Judge Paez repeats the tired claim that the Title X regulations “gag” health-care providers. Indeed, he even adopts the “Gag Rule” as his shorthand for the challenged regulations. He contends that the Title X regulations violate a 1996 law requiring that all pregnancy counseling be “nondirective” (pp. 4-11); that it violates the ACA (pp. 12-15); and that it is likely arbitrary and capricious (pp. 15-28).

Addendum (4:25 p.m.): A reader calls my attention to footnote 2 of the dissent, where Paez states that “people of all genders … can become pregnant.”

The Ninth Circuit has never decided to have a full en banc rehearing of a limited en banc panel ruling. I doubt very much that it will exercise that option here.

Law & the Courts

Collegiality, Liberal Style, on the Ninth Circuit

Irony alert: In this front-page article in the Los Angeles Times, several “veteran” Democratic appointees on the Ninth Circuit launch anonymous attacks on the supposed lack of collegiality of some of their new colleagues. Gee, how collegial of them to do so. And how strange that judges who “refused to be quoted by name” would defend their unattributed attacks by “saying they were not authorized to speak about what goes on behind the scenes.” If they’re not authorized to speak in their own names, on what possible basis do they think that they’re authorized to give anonymous quotes?

Judge Daniel P. Collins (disclosure: my former co-clerk for Justice Scalia and a longtime friend) is a particular target of the criticism. The complaints about how he “has appeared oblivious to court tradition” are amusing.

First, we’re told, Collins “has sent memos at all times of the night in violation of a court rule.” But from what I can tell, no such “rule” exists. And why would anyone prefer to get the memo the next day? A judge who prefers not to work as hard as Collins can make his or her own decision to read the memo in the morning. (Addendum: There evidently is some sort of preferred practice regarding memos the day before en banc votes.)

The second complaint is that Collins “objected to other judges’ rulings in language that some colleagues found combative.” To illustrate the point, the article notes that in a dissent from denial of rehearing en banc Collins called one panel decision “‘deeply flawed,’ ‘plagued’ by legal error and marked by ‘confused analysis.’” (The internal quotes are Collins’s words.) In response, two Democratic appointees said that his dissent “misrepresents the legal context of the case and wildly exaggerates the purported consequences of the panel opinion.” (Emphasis added.) On a scale of combativeness, I don’t see how the language of the Democratic appointees would get a lower score than Collins’s would, and I would have thought that “veteran” judges would have thicker skin.

The much more important question ought to be who is right. On that question, I’d bet big on Collins. I’ll also note that the issue at stake did not have the typical liberal vs. conservative ideological valence: Collins was defending the ability of Indian tribes to detain and investigate non-Indians for suspected violations of state and federal law within the boundaries of Indian reservations.

The third complaint is that Collins “moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel.” Further: “Judges said it was unprecedented for a new jurist to try to overturn so many decisions in such a short period of time.”

As soon as he joined the Ninth Circuit, Collins had not just a right but a duty to exercise his full responsibilities as a judge. The idea that he shouldn’t have taken part in en banc matters until he “had been assigned to his first panel” makes no sense. And having clerked on the Ninth Circuit when Judge Alex Kozinski came onboard, I doubt very much that there is anything about Collins’s first year on the court that is “unprecedented.”

I’m confident that Collins won’t be intimidated by this anonymous bullying. As one judge puts it, “I think he will be fine, though he will never be a go-along-get-along guy.” I think that Collins will be excellent, and when it comes to judicial decisionmaking, go-along-to-get-along strikes me as a vice rather than a virtue.

The article also makes a drive-by attack on Judge Lawrence VanDyke. It quotes the ABA’s harsh critique of VanDyke but makes no mention of the scathing criticism that the ABA received. (See, for example, Josh Blackman’s Atlantic essay.) It also notes that “VanDyke cried during his confirmation hearing when attempting to rebut criticism that he might be unfair to the LGBTQ community.” I find it very odd that VanDyke’s critics use his crying against him. VanDyke’s tears accompanied his moving testimony that “it is a fundamental belief of mine that all people are created in the image of God and they should all be treated with dignity and respect.” That strikes me as quite a rebuttal to the ill-founded charge against him.

Law & the Courts

This Day in Liberal Judicial Activism—February 24

Geoffrey R. Stone (Courtesy of the University of Chicago)

2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).

2016—At a mock hearing meant to pressure Senate Republicans to confirm whomever President Obama will nominate to the Supreme Court vacancy created by Justice Scalia’s death, law professor Geoffrey Stone panders to Senate Democrats by purporting to discern a practice under which “the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views.” Stone specifically cites Justice Samuel Alito as one such nominee.

This is the same Stone who in 2006 urged the Senate to defeat the Alito nomination. Back then, Stone emphasized that “members of the Senate are free to reject nominees if they disagree with [the] views” the nominating president “wants represented on the Court.” Stone further argued: “If the circumstances in the country or on the Court make the confirmation of a particular nominee especially troubling, senators are likely to give less deference to the president’s choices, and that is perfectly appropriate. That is how the process has worked historically, and it is how it should work.” (Stone’s emphasis.)

2017—Playing pronoun police, the Supreme Court’s Office of the Clerk chastises two amici for using a feminine pronoun (“G.G., by her next friend and mother, Deirdre Grimm”) to refer to the respondent in the caption of their briefs. Never mind that the respondent is a biological female and that a central question in the case is whether she must nonetheless be treated as though she were male. Never mind, further, that the rule that the clerk’s office alleges amici to have violated doesn’t remotely say what the clerk’s office claims the rule to mean (namely, that “parties generally should use the case title reflected on the Court’s docket”) and that the clerk’s office hasn’t previously enforced such a meaning.

Law & the Courts

This Day in Liberal Judicial Activism—February 23

Supreme Court Justice Elena Kagan attends a ceremonial swearing in Washington March 6, 2015. (Yuri Gripas/Reuters )

1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat.

2009—In an effort to bamboozle Republican senators and advance her own prospects for a Supreme Court nomination, Solicitor General nominee Elena Kagan submits evasive responses to post-hearing questions. For example, in response to the question, “Do you believe that there is a federal constitutional right to same-sex marriage?,” Kagan states, “There is no federal constitutional right to same-sex marriage.” Only in a further follow-up exchange does she make clear that she is not conveying her own view as to how the Constitution is best read on this matter but is merely stating that no such right has yet been generally recognized. Or, as she puts it in her academic gobbledygook:

I meant for this statement to bear its natural meaning. [sic!] Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

Kagan’s ruse nonetheless snookers the mainstream media: Upon her nomination to the Supreme Court a year later, various major newspapers leave their readers thinking that Kagan is on record against inventing a constitutional right to same-sex marriage.

Law & the Courts

This Day in Liberal Judicial Activism—February 22

Justice Harry Blackmun.

1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

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This Day in Liberal Judicial Activism—February 21

(Photo: Alptraum/Dreamstime)

1996—In Fierro v. Gomez, a Ninth Circuit panel, in an opinion by Judge Harry Pregerson, rules that California’s method of execution by lethal gas violates the Eighth Amendment.

2017—Defying the Supreme Court’s landmark Second Amendment ruling in Heller v. District of Columbia (2008), the en banc Fourth Circuit rules by a 10-to-4 vote (in Kolbe v. Hogan) that Maryland’s ban on so-called “assault weapons” and high-capacity magazines is constitutionally permissible. (Read Charles Cooke and David French for extensive critiques of the Fourth Circuit’s evasions and errors.)

Law & the Courts

Judicial-Nominations Update

The second session of the 116th Congress notably began with President Trump’s impeachment trial consuming the Senate’s attention, but as soon as it was over, Majority Leader Mitch McConnell returned to the business of confirming judges. Within a half hour of the Senate’s adjournment as a court of impeachment on February 5, McConnell filed cloture on five judicial nominations, including the elevation of district court judge Andrew Brasher to the Eleventh Circuit. All five nominees were confirmed last week, and McConnell declared, picking up a theme he previously touted, “My motto for the year is ‘leave no vacancy behind.’”

The Senate is in recess this week, but as detailed below, the total number of judges confirmed since inauguration day is approaching the 200 mark. Last week’s confirmations brought the total to 197. On Thursday, McConnell filed cloture on numbers 198 and 199, two district court judges for the Virgin Islands and Puerto Rico respectively.

Here is a full update on the status of President Trump’s judicial nominations:

Current and known future vacancies: 87

Courts of Appeals:  1

District/Specialty Courts*: 86

Pending nominees for current and known future vacancies:  39

Courts of Appeals: 0

District/Specialty Courts*:  39

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
None

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
None

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
None

 Nominees Awaiting Floor Votes: 6

Courts of Appeals: 0

District/Specialty Courts*: 6

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 1
  • # of pending nominees originally nominated > 500 days ago: 1
  • # of pending nominees originally nominated > 400 days ago: 3
  • # of pending nominees originally nominated > 300 days ago: 3

Nominees Confirmed by the Senate during the 116th Congress: 112

Supreme Court: 0

Courts of Appeals: 21

District/Specialty Courts*: 91

Nominees Confirmed by the Senate since Inauguration Day: 197

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 144

* Includes the Court of Federal Claims and the International Trade Court

Law & the Courts

Ending the Administrative State Is an Uphill and Necessary Battle for a Free Nation

(Larry Downing/Reuters)

James Madison defined tyranny as the “accumulation of all powers, legislative, executive, and judiciary, in the same hands.” Yet, according to many prominent progressives, this venerable principle that inspired our constitutional structure is an existential threat to the modern architecture of the federal government. Take, for instance, a New Republic article, which sees Madison’s remedy for tyranny as an evil plot to sink the entire federal bureaucracy.

In “The Plot to Level the Administrative State,” New Republic writer Matt Ford warns that some Supreme Court justices want to revive the nondelegation doctrine — a fancy term for the idea that Congress can’t punt its lawmaking power to a different branch of government. Many on the left fret that this revival poses an existential threat to the modern trend of bureaucratic rule. I hope they’re right.

This wicked plot began in 1787. That year, our Founders built a constitutional structure unique in history — a binding document that separated government functions into three distinct spheres: legislative, executive, and judicial.

Article I vests the legislative power in Congress and sets rules about how lawmaking happens. It splits the lawmaking body into two houses, determines how the lawmakers are selected, and requires that legislation pass both houses and be presented for the president’s approval. Other rules abound, such as requirements that tax bills begin in the House and that no legislator can be appointed to a federal civil office during their tenure.

These rules rein in the power to pass laws that bind the people. If Congress could abdicate such authority to the executive branch, which faces no similar constraints, then those constraints would be meaningless. The power to make laws would face few barriers to abuse. Yet that is precisely what is happening today.

A few statistics demonstrate the degree to which the lawmaking authority vested in Congress has been passed off to eager bureaucrats. In 1950, the Federal Register — the federal government’s daily journal containing rules, proposed rules, and public notices — published 9,562 new pages. In 2016, that number had exploded by 97,069 new pages just that single year, the vast majority of them dedicated to new rules and proposed rules.

These rules aren’t just trivial guidelines. Many of the rules have the power to strangle the economy, trample individual rights, and slap the public with severe criminal penalties. In 2016 alone, federal agencies adopted 127 new “major rules,” meaning rules that result in either an annual effect on the economy of at least $100 million, a major increase in costs to consumers and businesses, or significant adverse effects on competition, employment, innovation, etc. Hence, the administrative state does a whole lot more than administer; it rules. And that ruling power lacks safeguards that restrain Congress, allowing administrative agencies to act simultaneously as lawmakers, prosecutors, judges, and police officers. In short, the modern administrative state increasingly resembles James Madison’s idea of tyranny.

This “headless fourth branch of government” is exactly what the Founders sought to avoid by dividing power among independent branches. They knew that the lawmaking power would be ripe for abuse if they didn’t rope it off from the power to execute and adjudicate the laws. Madison described the problem this way: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Framers’ answer to this difficulty is two-fold: Make the government dependent on the people and separate the functions of the government so that ambition will counteract ambition. Delegating the lawmaking power to unelected bureaucrats dissolves both these safeguards.

This development was not an accident. Progressives in the early 20th century picked at the fabric of our constitutional design with the exact intent to unravel the separation of powers. Major political figures of the early 20th century exhibited a cavalier disdain for checks and balances. Teddy Roosevelt, a man perpetually impatient with obstacles to his sweeping vision, said: “The danger to American democracy lies not in the least in the concentration of administrative power in responsible and accountable hands. It lies in having the power insufficiently concentrated, so that no one can be held responsible to the people for its use.”

And Woodrow Wilson claimed that “the radical defect in our federal system [is] that it parcels out power and confuses responsibility as it does.” This is a man who said that, if he could, he would “be willing to go farther and superintend every man’s use of his chance.” Of course, he couldn’t tinker with individuals’ lives as he wished because the Constitution stood in his way, a document he saw as an outdated product of “the old-fashioned days when life was very simple.”

Today’s defenders of a vast bureaucracy trot out the same, tired argument: Life now is much more complicated than the one the Founders lived in — government allegedly needs the unencumbered power to solve modern problems. I would hazard that the men who tackled the challenges of building a nation, quelling rebellions, and tangling with enemies bent on the demise of a fragile republic might disagree that their era was simpler than ours. In fact, one of the grievances against the king listed in the Declaration of Independence echoes the problems of the modern administrative state: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” The common denominator that endures from their era to ours is human nature — something the Framers understood well. In a complex world or a simple one, people are prone to abuse power. The structure built by the Framers is the most elegant and enduring answer to that perennial problem.

The “plot” to end the administrative state is, in fact, an uphill battle to reclaim the principles that founded our free nation. If there’s any plot, it’s the one that has been perpetrated since at least the beginning of the 20th century — to put an end to the separation of powers that stands as the primary barrier to ambitious and power-hungry rulers. In any case, if the revival of the separation of powers is indeed a plot, consider me an eager co-conspirator.

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Did you know that infamous Nazi Hermann Göring was a great lover of animals, a protector of birds, and head of the forestry service in Germany? Unless you’re a history buff, probably not. After all, almost no one feels the need to preface their comments about the Third Reich with “Sure, the authoritarianism ... Read More

The Highest-Stakes Moment Brings the Worst Debate

Tonight’s debate would have been only marginally less incoherent, noisy, and grating to the ears if CBS had broadcast two hours of static. The last debate before the South Carolina primary featured so much shouting, you would think that the candidates had just been told their microphones weren’t working. ... Read More

The Highest-Stakes Moment Brings the Worst Debate

Tonight’s debate would have been only marginally less incoherent, noisy, and grating to the ears if CBS had broadcast two hours of static. The last debate before the South Carolina primary featured so much shouting, you would think that the candidates had just been told their microphones weren’t working. ... Read More

Is America Ready for President Noam Chomsky?

Bernie Sanders may be on the verge of gaining an insurmountable lead in the Democratic nomination fight, but he’s not letting that get in the way of his socialist principles. Asked in a 60 Minutes interview about old statements praising Fidel Castro’s supposed achievements in health care and education, ... Read More

Is America Ready for President Noam Chomsky?

Bernie Sanders may be on the verge of gaining an insurmountable lead in the Democratic nomination fight, but he’s not letting that get in the way of his socialist principles. Asked in a 60 Minutes interview about old statements praising Fidel Castro’s supposed achievements in health care and education, ... Read More

‘Undiagnosed Sociopath’

As we abandon moral language for clinical language, we run into technical difficulties. Writing in the New York Times, Thomas Friedman describes the 2020 presidential election as one that may be a contest between “a self-proclaimed socialist and an undiagnosed sociopath.” There is no such thing as an ... Read More

‘Undiagnosed Sociopath’

As we abandon moral language for clinical language, we run into technical difficulties. Writing in the New York Times, Thomas Friedman describes the 2020 presidential election as one that may be a contest between “a self-proclaimed socialist and an undiagnosed sociopath.” There is no such thing as an ... Read More

Bernie Sanders Hates America

Bernie Sanders, the socialist from Vermont from Brooklyn, has stepped in it and stepped in deep with his praise of Fidel Castro’s brutal dictatorship in Cuba and its fictitious advances in, among other things, literacy. Republicans must be looking forward to watching him defend that in Florida in front of ... Read More

Bernie Sanders Hates America

Bernie Sanders, the socialist from Vermont from Brooklyn, has stepped in it and stepped in deep with his praise of Fidel Castro’s brutal dictatorship in Cuba and its fictitious advances in, among other things, literacy. Republicans must be looking forward to watching him defend that in Florida in front of ... Read More