By my count, two minutes passed between the moment Donald Trump introduced Neil Gorsuch as his nominee to the Supreme Court and the arrival of the first email deeming him a “far-right jurist” in my inbox.
Congratulations, National Abortion Federation: You get the gold medal. Something called the Constitutional Accountability Center was a minute behind. The slackers at the Alliance for Justice needed four minutes to pronounce Gorsuch “disastrous.”
Here’s guessing we would have heard similar declarations no matter who Trump named.
But our liberal friends might want to stop and think this one through. Not just because a dozen current Democratic senators — plus then-Sens. Barack Obama, Joe Biden, Hillary Clinton and John Kerry — voted to confirm Gorsuch to the 10th U.S. Circuit Court of Appeals in 2006. Not just because he has a pristine record and a great deal of respect from liberal legal minds. Not just because provoking the GOP to kill the filibuster for Supreme Court nominees when replacing the late Antonin Scalia, when the next opening could tip the court’s ideological balance, would be a mistake by Democrats playing to their base’s frothing hatred of Trump.
No, it’s precisely because liberals loathe, and seem terrified of, all they see or imagine Trump doing that they should appreciate one likely aspect of Gorsuch’s jurisprudence.
That one man’s election can spark such fear among so many people speaks to the mutation of the federal government generally, and the executive branch specifically. The overgrowth of Washington, D.C., shows up in many ways, perhaps none less justifiable than the power of regulatory agencies.
These agencies now comprise a veritable fourth branch of government, unelected and unaccountable to the public. If you worry presidential power will harm you in some way, your concerns probably stem from these agencies and their powers.
This power had to be abdicated by others. It was ceded first by Congress, which as the branch most directly accountable to the people was intended to do the hard, sometimes messy work of lawmaking. Because it can be so hard and messy, and because Washington insists on delving into so many subject areas, lawmakers increasingly find it convenient to write broad, overarching legislation that allows the implementing agencies to fill in many of the details. The effect is the agencies make the law in many cases.
The third branch was supposed to ensure, among other things, this didn’t happen. But the courts have fallen short, too. Starting with a 1984 Supreme Court case known as Chevron, the judiciary has gradually given more rule-making latitude to regulatory agencies. One effect is that, when a new administration takes over, their new appointees in the agencies are more able to change the law quickly, with less public scrutiny or accountability.
As an appellate judge, Gorsuch has suggested it’s time for the Supreme Court to rethink its deference to regulators under Chevron. He’s right, and a great many conservatives agree.
Perhaps liberals, discovering a strange new respect for reining in the executive branch, limiting the federal government and ensuring some regulatory stability after eight years of dismissing such quaint notions, could also see the value now of such a reappraisal.