Neil Gorsuch Is Ready to Take On Administrative State

Supreme Court Associate Justice Neil Gorsuch speaks at the Federalist Society's 2017 National Lawyers Convention in Washington, Thursday, Nov. 16, 2017. (AP Photo/Sait Serkan Gurbuz)
AP Photo/Sait Serkan Gurbuz

Justice Neil Gorsuch gave the most significant public address of his tenure on the nation’s highest court Thursday when he addressed the Federalist Society’s annual dinner, recently named in honor of the last man to hold his seat: Antonin Scalia.

The newest Supreme Court justice took square aim at one of this year’s Federalist Society Convention’s main themes: the “administrative state,” the unelected mass of executive agency staff that actually creates most of the rules and regulations by which Americans live. Resistance of the administrative state’s growth and overreach is a driving force in the emergence of populist-nationalism and the Trump movement. Breitbart News Executive Chairman Stephen K. Bannon has repeatedly called the “deconstruction of the administrative state” one of the three pillars of populist-nationalism.

Gorsuch has been under fire from the left and the mainstream legal establishment for his willingness to reexamine the once-controversial twentieth century Supreme Court decisions that made the modern, massive administrative state possible. He mocked a recent article in the Harvard Law Review claiming the administrative state is “under siege” and calling him an “anti-administrativist.” “Anti-adminstrativism was conclusively rejected in the 1930s,” Gorsuch quoted the article as saying.

“That’s kinda funny,” Gorsuch joked, “I thought the powers of our government were conclusively allocated in the 1780s.”

The notion that reining in the power of the administrative agencies is a project in the interest of “big business” held no sway with Gorsuch. “The fact is, getting administrative law right is important to everyone who interacts with our government. And today, that’s just about everyone,” he said. “The mighty can keep track of the changes easily enough, maybe even influence them … but what about the ordinary citizen?”

“Remember that, for many years, the courts seemed wary of the job of trying to draw lines between laws that fall within or beyond Congress’s power to regulate interstate commerce,” Gorsuch explained, referring to the clause of the Constitution that came in the twentieth century to allow the federal government to regulate virtually any aspect of citizens’ lives, “yet courts have since managed to enter the field there, and it’s unclear why they can’t do the same here [with the administrative state.]”

Gorsuch also tried to make light of his unprecedented contentious confirmation hearings where Democrats skewered him for a dissent that ruled against a fired truck driver, joking with the audience of jurists, politicians, law professors, and attorneys from the conservative and libertarian tradition at the black tie event at Union Station in Washington, DC:

Good judges will look at a statute or regulation and immediately know three things: One, the law is telling you to do something really, really stupid. One, the law is constitutional, and I have no choice but to do that really stupid thing the law commands. And three, when it’s done, everyone who’s not a lawyer will think I just hate truckers.

“Tonight, I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court,” he told attendees, which included Senate Majority Leader Mitch McConnell (R-KY); Sen. Dan Sullivan (R-AK); and Attorney General Jeff Sessions, who will address the Federalist Society Friday at its convention. He later continued, “Originalism has regained its place at the table of constitutional interpretation, and textualism in the reading of statutes has triumphed, and neither one is going anywhere on my watch.”


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