[The Federalist] ‘Schoolhouse Rock’ Forgot To Teach Kids About The Administrative State

https://thefederalist.com/2024/08/05/schoolhouse-rock-forgot-to-teach-kids-about-the-administrative-state/

‘Schoolhouse Rock’ Forgot To Teach Kids About The Administrative State
It’s a wonderful introduction to our system of government. But for all the video gets right, there’s an anomaly at its core.
BY: NEIL GORSUCH
AUGUST 05, 2024

Remember the “Schoolhouse Rock!” videos? There’s one with a cartoon figure of a bill sitting on the steps of Capitol Hill explaining how our federal legislative process works: the committee debates, the votes in the House of Representatives and the Senate, the need for the president’s signature or a veto override.

It’s a wonderful introduction to our system of government. But for all the video gets right, there’s an anomaly at its core. The video follows the progress of a long-languishing bill designed to require school buses to stop at railroad crossings. At last and with much pride, the bill finally succeeds in becoming a law. As it happens, though, we have no specific federal law like that. Instead, we have an agency rule, one issued by the Department of Transportation and buried deep within the Code of Federal Regulations, Title 49, Section 392.10, to be exact.

The truth about “Schoolhouse Rock!” illustrates another notable feature of our law today. Not only have the last few decades witnessed a shift in power from local to federal authorities, but even within Washington, a dramatic transfer of power has taken place from elected representatives to unelected agency officials. These days, federal agencies don’t just enforce the laws Congress writes; they also engage in activities that look a lot like legislating and judging. In important ways, all three of the powers Madison and the founders took care to separate have become commingled in agency hands.

Start with the agencies’ quasi-legislative powers. Today, executive officials regularly issue sweeping rules like those Marty Hahne and the museum encountered. Some, of course, are the result of directives straight from the top; President George W. Bush’s administration implemented limits on federal funding for human embryonic stem cell research, while President Barack Obama’s administration issued the Deferred Action for Childhood Arrivals policy that reshaped immigration enforcement priorities. Both policies made front-page news. But the vast majority of executive branch decisions are not like that. They may be deeply consequential for thousands or millions of people, but they do not attract the kind of public attention that might sway elections. Just ask Marty.

Increasingly, too, these rules are produced without effective presidential oversight. As Judge Neomi Rao, who once headed the Office of Information and Regulatory Affairs, has explained, “a single bureaucrat can at times exercise an authority that exceeds that of a member of Congress. Meaningful burdens can be imposed by regulations that do not reach the threshold for [this Office’s] review or even consideration by an agency head or other political official.”

A report by the Pacific Legal Foundation found that 71 percent of the nearly 3,000 rules issued by the Department of Health and Human Services between 2001 and 2017 were issued by lower-level officials rather than Senate-confirmed agency leaders; at the Food and Drug Administration the figure was 98 percent. Hundreds of those regulations were deemed “significant” by the Office of Management and Budget and according to Senate testimony by one of the report’s authors, “the FDA’s own estimates found that the 23 most economically significant rules issued by non-Senate-confirmed employees have had a combined cost of $17.7 billion.”

The sheer scale of agency output is staggering. Remember all those laws that Congress passed in the 1960s and 1970s? Many of them authorized the creation of powerful new federal agencies with vast new powers; federal regulatory output has exploded ever since. Take one recent year by way of illustration. In 2015, Congress adopted about one hundred laws. The same year, federal agencies issued 3,378 final rules and published another 2,334 proposed rules.

Today, forest rangers operate with thick books of rules. Makers of ketchup, peanut butter, vodka — you name it — contend with rules that regulate down to the smallest detail. Ketchup must have a pH of 4.2 +/− 0.2 at certain stages of its formulation, and peanut butter may not have a fat content that exceeds 55 percent. Even the way the fat content is measured is closely regulated — it must be measured according to the rules “prescribed in Official Methods of Analysis of the Association of Official Analytical Chemists, 13th Ed. (1980).” But good news for vodka aficionados; officials recently amended rules that once required vodka to be “without distinctive character, aroma, taste, or color.”

You might ask how we got so recently and so quickly to a point where unelected bureaucrats can make so many legally binding rules covering so many aspects of our lives. Well, the story’s complicated. Small pieces of it fill long books, and we cannot begin to capture it all. But even a quick glimpse back tells quite a tale.

Not long after the Constitution’s ratification, Congress took up a debate about the new nation’s postal system. Around 75 post offices and 2,400 miles of postal roads already existed — and in a nod to the new nation’s view of the importance of the affair, Benjamin Franklin had been named the country’s first postmaster general. One of the questions Congress faced concerned where to site a number of new postal routes. Should the route from Taunton to Newport go through Warren and Bristol or some other towns? How about the route from Baltimore to Hagerstown? One congressman, Massachusetts’s Theodore Sedgwick, found the whole affair silly. Why not, he proposed, simply appropriate funds for roads “by such route as the President of the United States shall, from time to time, Cause to be established?”

You might think that an eminently sensible solution. But some congressmen, including Madison, no less, protested that the proposal would improperly delegate legislative power to the executive branch. One insisted that the Constitution required the government to be “administered by Representatives, of the people’s choice; so that every man, who has the right of voting, shall be in some measure concerned in making every law for the United States.” Another observed sarcastically that, if the proposal succeeded, he would advance another that would “save a deal of time and money,” for “if this House can . . . leave the business of the post office to the President, it may leave to him any other business of legislation; and I may move to adjourn and leave all the objects of legislation to his sole consideration and direction.” In the end, the Postal Act of 1792 gave the postmaster discretion on many fronts, but it also contained a long and dreary recitation of postal routes.

Today, the postal route debate seems a world away. Few think the Constitution requires Congress to decide details like that. Surely, too, our agencies have much to offer when it comes to advising Congress about making new laws and administering old ones. But the episode does offer some sense of how far we have traveled from the debates of Madison’s day to our own. In Article I of our Constitution, the people vested “All” federal “legislative Powers . . . in a Congress.” A few decades after the postal route debate, Chief Justice John Marshall wrote for the Supreme Court that this assignment means “important subjects” must be “entirely regulated by the legislature itself,” while Congress may leave “details” (like postal routes) for other officials “to fill up.” For years, the Supreme Court described the principle that Congress “cannot delegate legislative power” to executive branch officials as “vital to the integrity and maintenance of the system of government ordained by the Constitution.”
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But it has been decades since our courts have done much to enforce that rule. And perhaps thanks in part to that omission, the pendulum has swung toward far-reaching delegations of legislative authority to agency officials. These days, Congress sometimes leaves agencies to write legally binding rules with little more guidance than “go forth and do good.” Laws tell agencies to regulate as “the public interest, convenience, or necessity” requires; others task them with setting “fair and equitable” prices; still others authorize agencies to determine “just and reasonable rate{s]}.” One law that made its way to the Supreme Court recently even leaves the nation’s chief prosecutor more or less free to decide for himself what kind of criminally enforceable registration requirements should apply to about half a million people. Thanks to broad delegations like these, agencies can write, change, and change again rules affecting millions of Americans — all without any input from Congress.

While he was an early advocate for administrative power, Justice William O. Douglas explained that later in life he came to “realize that Congress defaulted when it left it up to an agency to do what the ‘public interest’ indicated should be done. ‘Public interest’ is too vague a standard to be left to free-wheeling administrators. They should be more closely confined to specific ends or goals.” But that wish, too, seems now a world away. If laws governing major facets of our society were once largely the work of elected representatives and the product of democratic compromises, nowadays they often represent only the current thinking of relatively insulated agency officials in a distant city. It’s a result that, as Justice William J. Brennan, Jr., once observed, can pose a quandary: “Whereas the colonists challenged the king, today’s citizens may find it impossible to know exactly who is responsible.”

Excerpted from Over Ruled by Neil Gorsuch and Janie Nitze. Copyright 2024 by Neil Gorsuch. Published with permission from Harper Books and HarperCollins Publishers.

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related

https://blog.simplejustice.us/2024/08/05/getting-to-know-gorsuch/

8 hours ago
Getting To Know Gorsuch
by SHG
August 5, 2024

Supreme Court Justice Neil Gorsuch has a book coming out, so he’s doing what every author does to sell books and what most justices don’t to avoid the appearance of impropriety. Justice Gorsuch sat for an interview with David French. To be fair, David is a lawyer, a never-Trump conservative and deeply religious, so there was little expectation of an interview starting with “j’accuse.”

That said, it was a very interesting interview and revealed some of Gorsuch’s views that are often overlooked by pundits lambasting him for being on the wrong side of a decision. Notably, he served as a judge on the Tenth Circuit from 2006 until 2017, when he was appointed by Trump to the Supreme Court, where he was well-regarded and uncontroversial. But nothing courts hatred like an appointment by Trump, even though a dear friend to SJ, Senior District Judge John Kane, testified on then-Judge Gorsuch’s behalf at his confirmation hearing.

The interview is rather long, but it’s worth a full read. Here’s a taste.

David French: So I want to start by talking about the book. It takes direct aim at the proliferation of rules, regulations and statutes that govern our lives. But I’m really intrigued by the emphasis on the human toll. Critics of the regulatory state often emphasize the economic toll of dense regulations and rules. They’ll tell you if we can smooth out the Federal Register, we could save X billions of dollars, for example. But its defenders will say, “Well, wait a minute. These regulations might create economic inefficiencies, but they actually protect people.” Your book says that’s not necessarily the case. What is the human toll?

Neil Gorsuch: Well, that’s sort of a question about why I wrote the book, David, I think. And the answer is, I’ve been a judge for about 18 years now. And I just have seen so many cases in which ordinary, hard-working, decent Americans, trying to do their best and intending no harm to anyone, just get caught up in a wall of rules or laws that they didn’t know existed.

And having sat through those cases, I wanted to know more about how that came to be, why, and more about them.

So really, the book’s a book of stories about them, of a fisherman in Florida, about monks in Louisiana, about hair braiders in Texas. And they’re cases I’ve seen or some of my colleagues have told me about, and it is not an attack at all on law or regulation. For goodness’ sake, I’m a lawyer and a judge. And some law is absolutely necessary, in order to protect our liberties and our safety.

Washington called that “ordered liberty.” But the founders also knew that too much law poses some dangers as well. James Madison talked about that in The Federalist, and he said a couple of things happen. One, you start losing your liberties. And two, it impacts different populations differently. So the moneyed and the connected can find their way through a maze of litigation and through a maze of regulation. But what about ordinary Americans?​

And if that doesn’t pique your interest, try this on for size.

French: You speak in the book about coercive plea bargaining, this process where a prosecutor will charge somebody and then agree to a much reduced sentence on the condition that they don’t take it to trial, that they go ahead and plead guilty, or sometimes when they refuse to plead guilty, they’ll add additional charges. This is something that a lot of critics of the criminal justice system have highlighted for some time. Do you see a remedy?

Gorsuch: Well, I’m a judge, and I’m going to apply the laws we the people pass. That’s my job. In the book, I just wanted to highlight to “we the people” some of the changes that I’ve seen in our law during my lifetime, and plea bargaining during my lifetime has skyrocketed. It basically didn’t exist 50 or 100 years ago, and now 97 percent or so of federal criminal charges are resolved through plea bargaining.

And I just have some questions. What do we lose in that process? We lose juries. Juries are wise, right? And they’re a check both on the executive branch and prosecutors and they’re a check on judges, too, right? And the framers really believed in juries. I mean, there it is in Article 3. There it is in the Sixth Amendment. There it is in the Seventh Amendment. They really believed in juries, and we’ve lost that.

And another thing about juries, when you lose juries: Studies show that people who sit on juries — nobody likes being called for jury service. But studies show that after jury service, people have a greater respect for the legal system, for the government, and they participate more in their local governments.​

Not quite what Linda Greenhouse led you to believe would come from the lips of her illegitimate partisan hack. But that’s the problem, as amply reflected by the most highly recommended comments at the New York Times. The top comment:

In his altogether too friendly interview with Gorsuch, Mr. French failed to ask the most pressing of questions: How does any Justice claiming to be an originalist, let alone textualist, find a Constitutional basis for granting absolute immunity to a President for any act deemed part of official Article I powers?​

The runner-up:

I couldn’t make it through this interview because I don’t want to start my day angry. It takes a lot of gall for French and Gorsuch to pretend that dismantling regulations is all for the average guy and not for corporations who want to make more money without safeguards for the rest of us.​

And to round out the top three:

My first question is: “How can you be a Supreme Court Justice when Mitch McConnell unethically ignored Obama’s nomination of Justice Garland and you were appointed?”​

For some of us, we’ve spent decades being critical of Supreme Court rulings, from Whren to Heien to doggie sniffs. The unduly passionate were blissfully unaware until they had the Trump justices to hate, whereupon they hated even though they cared nothing about the Court before. Granted, Dobbs could not have been better designed to prove the haters’ worst fears right.

As for Justice Gorsuch, his majority opinion in Bostock was a horribly written and essentially incoherent decision and bought him no comfort from his haters, even though he came out on the side they demanded. Of course, when that happens, the justices merely did what should have been done anyway. When it doesn’t, the justices are illegitimate partisan hacks.

The interview was, unsurprisingly, friendly. Then again, what justice would tolerate an interview where he was the target of partisan attack and accusation? Still, it showed that Justice Gorsuch is hardly the one-dimensional scoundrel his haters believed him to be. The problem is that after this interview, his haters’ views haven’t changed despite David’s showing Gorsuch to be a multi-dimensional human being trying to do his best, even if his best isn’t what some would want.

There is nothing that will change their cartoon character understanding of the Court, and there is nothing the justices can do to counter the unshakable belief that it’s an illegitimate court of partisan hacks rather than a conservative Court with which they are often going to disagree, as I have for decades.

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'Too Much Law' Gives Prosecutors Enormous Power To Ruin People's Lives
In a new book, Supreme Court Justice Neil Gorsuch describes the "human toll" of proliferating criminal penalties.

https://reason.com/2024/08/07/too-much-law-gives-prosecutors-enormous-power-to-ruin-peoples-lives/