In drafting the United States Constitution, the framers intended a nation with three equal branches. In large part due to judicial and executive ‘activism,’ America has lost its way and the effectiveness of the legislative branch has suffered as a result. As Peter Wallison explains, the nomination of Judge Kavanaugh to the Supreme Court will go a long way in restoring the framer’s initial aim.
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.
The RNLA is pleased to announce that former U.S. Attorney General Michael Mukasey will speak at the National Policy Conference on Friday, April 27. Tickets and more information are available here. Unlike previous years, walk-up registration will not be available this year.
Judge Mukasey has had a distinguished career of public service and private practice, supporting the rule of law for many years:
Michael B. Mukasey, of counsel to [Debevoise & Plimpton LLP], recently served as Attorney General of the United States, the nation’s chief law enforcement officer. As Attorney General from November 2007 to January 2009, he oversaw the U.S. Department of Justice and advised on critical issues of domestic and international law. Judge Mukasey joined Debevoise as a partner in the litigation practice in New York in February 2009, focusing his practice primarily on internal investigations, independent board reviews and corporate governance.
From 1988 to 2006, Judge Mukasey served as a district judge in the United States District Court for the Southern District of New York, becoming Chief Judge in 2000.
From 1972 to 1976, Judge Mukasey served as an Assistant United States Attorney for the Southern District of New York, and as Chief of the Official Corruption Unit from 1975 to 1976. His practice consisted of criminal litigation on behalf of the government, including investigation and prosecution of narcotics, bank robbery, interstate theft, securities fraud, fraud on the government and bribery. From 1976 to 1987 and from 2006 to 2007 he was in private practice.
Judge Mukasey wrote a few years ago in defense and praise of the exceptional nature of our system of separation of powers and federalism established by the Constitution:
Ours is the only nation on earth to define itself and the rights of its citizens based not on blood or land, but rather on adherence to a document: the Constitution. Moreover, that document was architected in large measure to protect those rights. Here I emphatically do not refer to the Bill of Rights – the first ten amendments – but rather to the structure of the government defined in the body of the Constitution, with powers of governance divided among the three branches, and, as to legislative powers, between the two Houses of Congress, so as to assure that interests would always be pitted against competing interests. That structure was put in place with explicit awareness, as Madison famously wrote in Federalist 51, that neither men outside government nor those inside it are angels, and thus governments are necessary to govern the former, and limits on government are necessary to control the latter; but as between the two, government is bottom up, not top down. . . .
What protects our rights as Americans is not their recitation in the first ten amendments to the Constitution, but rather the structure put in place in the body of the Constitution -- with specifically enumerated legislative powers lest the legislature overreach; and a president given “the executive power” – all of it – but compelled to swear allegiance to the Constitution and to “take Care that the Laws be faithfully executed” lest he overreach. . . .
Neither judicial-legislative symbiosis, nor judicial parasitism, was foreseen by the Founders. In Federalist No. 78, Hamilton portrayed the judiciary as “the least dangerous to the political rights of the Constitution,” and possessed of a “natural feebleness” that left it in constant jeopardy from the other branches, at least so long as it remained separated from legislative and executive powers.
No rules, even those contained in the splendidly crafted Constitution, can determine their own application. The Constitution, even though it is responsible for so much of our exceptionalism, and for keeping our rights safe from infringement, is virtually never itself the subject of serious study in schools. It appears, at least to me, that more people are familiar with cases decided under the Constitution than with the Constitution itself. If what so defines us and sets us apart is to continue to do so, that is going to have to change. Failing such change, we may wake up to find that, like those who reside in the countries of the European Union, we are governed not from the bottom up, but from the top down.
We are honored for Judge Mukasey to address the RNLA at the end of April, and we invite you to join us.
Last week, Justice Clarence Thomas and Justice Neil Gorsuch dissented from a denial of certiorari in Garco Construction v. Speer. They would have granted cert to determine whether Auer v. Robbins and Bowles v. Seminole
Rock & Sand Co., and the deference to agencies' interpretation of their own regulations and rules contained in them, should be overruled. Their dissent is a succinct indictment of this deference to administrative agencies' interpretations and a defense of the separation of powers (internal citations and notes omitted):
Seminole Rock and Auer require courts to give “controlling
weight” to an agency’s interpretation of its own regulations. To qualify, an agency’s interpretation need not be
“the best” reading of the regulation. It need only be a reading that is not “plainly erroneous or
inconsistent with the regulation.” Although Seminole Rock deference
was initially applied exclusively “in the price control context
and only to official agency interpretations,” this Court has
since expanded it to many contexts and to informal interpretations.
Seminole Rock deference is constitutionally suspect. It transfers “the judge’s exercise of interpretive judgment
to the agency,” which is “not properly constituted to exercise
the judicial power.” It also
undermines “the judicial ‘check’ on the political branches”
by ceding the courts’ authority to independently interpret
and apply legal texts. And it
results in an “accumulation of governmental powers” by allowing the same agency that promulgated a regulation
to “change the meaning” of that regulation “at [its] discretion.” This Court has never
“put forward a persuasive justification” for Seminole Rock
deference.
By all accounts, Seminole Rock deference is “on its last
gasp.” Several Members of this Court
have said that it merits reconsideration in an appropriate
case. Even the author of Auer came to doubt its
correctness.
This would have been an ideal case to reconsider Seminole
Rock deference, as it illustrates the problems that the
doctrine creates. . . . Because this Court has passed up another opportunity
to remedy “precisely the accumulation of governmental
powers that the Framers warned against,” I respectfully dissent from the denial of
certiorari.
Thank you, Justice Thomas and Justice Gorsuch, for defending the rule of law against otherwise unaccountable federal agencies. We can only hope that soon the rest of the Court joins in restoring the proper balance of power between the branches of government.
