Brett Kavanaugh—President Trump’s most recent nominee for the Supreme Court—could return legislative authority [to] Congress. His confirmation will add a fifth vote to a conservative group in the Court that seeks to take power away from the agencies of the administrative state and put it back where it belongs, in the legislative branch.In the past seventy years the liberal movement in the United States has done everything it can to decrease individual liberty and increase the size and scope of government.
The reason for Congress’s weakness today is a failure of the courts over many years to carry out a role that the Framers expected them to perform: to keep the elected branches within their assigned responsibilities.
The Framers designed a system of separated powers—a Congress to make the laws; a president and executive branch to enforce or execute the laws; and a judiciary to interpret the laws—because they believed that was the only way to preserve the peoples’ liberty against the encroachments of government.In his recent op-ed, Wallison details exactly when the progressive left began its assault on the constitution.
The Framers’ structure remained in balance for almost 150 years, but everything began to change during FDR’s New Deal. In 1935, the Supreme Court declared two congressional actions unconstitutional because they violated the separation of powers by delegating legislative power to the executive branch. But after his landslide election in 1936, FDR retaliated with a proposal to increase the size of the Court to 16, allowing him to appoint seven new members.
This opened a wide field for both the creation of new administrative agencies and empowering them with wide-ranging rule-making authority.
Completing the Court’s surrender to the executive was the 1984 unanimous decision in Chevron v. National Resources Defense Council. In this case, the Court directed lower federal courts to defer to administrative interpretations of their own authorities, if that interpretation was “reasonable.” This allowed administrative agencies to reinterpret existing statutory authority in new ways and again substantially increased administrative power.The confirmation of the highly qualified Judge Brett Kavanaugh would reverse the massive growth of bloated government agencies and overreaching executive power. Judge Kavanaugh would cement an ‘originalist’ view of the Constitution and restore our republic to its initial ideals centered on liberty and freedom from government.