Gorsuch v. the administrative state

The fight against the Gorsuch SCOTUS nomination begins with the usual mischaracterization of his legal positions by opponents.  In this case the attack is made by Eric Posner through Philip Hamburger and a convenient straw man:

As the Senate prepares to question Judge Neil Gorsuch for possible appointment to the Supreme Court, my former colleague Eric Posner asks: “Is Gorsuch a Hamburgerian?” Posner thereby attempts to set up Gorsuch by associating him with . . . not really me, nor my scholarship, but a boogeyman of Posner’s imagination.

The charge?  Gorsuch is an “anti-elitist” (that’s bad? – ed.).  Regardless, Hamburger makes mince meat (ok, I couldn’t resist) of the Posner argument, such that it is:

There is nothing “anti-elite” in explaining the U.S. Constitution’s representative form of government and its guarantees of rights. Nor is there anything anti-elite in studying the role of class in the development of administrative power.

My scholarship (past and forthcoming) argues that administrative power undermines equal voting rights by shifting much lawmaking power out of Congress into the hands of unelected administrators. My work shows, moreover, that this shift occurred when the knowledge class regretted the boisterous sort of politics that came with equal voting rights. Woodrow Wilson candidly explained that “the reformer is bewildered” by the need to persuade “a voting majority of several million heads”—especially when the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” One could go on at length with such quotes, and certainly administrative power has been dominated by whites of a certain class, but the point is not narrowly about racism. Instead, it is about how a class that expected deference to its knowledge was disappointed with the results of equal suffrage in a diverse society. It therefore welcomed a transfer of lawmaking power out of the elected legislature and into the hands of the right sort of people.

The argument, in other words, is not against an elite, but against the administrative dilution of representative government and equal voting rights.

And given Hamburger’s explanation of his argument, it is a position I’d want any Justice to take.  We have slowly seen an unelected, unaccountable group that owes nothing to the people or their elected representatives take control of the government.  Politicians come and go, but this unaccountable, fiefdom building bureaucracy stays and perpetuates its existence at the expense of those who are governed.

Regulatory agencies are in place to do one job – regulate.  The more they have to regulate, the more they can grow and continue to guarantee their existence.  Additionally, the larger and more complex government becomes, the less Congress and even the Executive branch is able to control the bureaucracy and the less likely the bureaucracy is to suffer any decline.

Until, of course, that point in the future when it becomes so ossified that it simply doesn’t function anymore.

I can’t imagine anyone who values limited and accountable government not being against the “administrative state” and I certainly can’t imagine not wanting a justice who both understands the problem and is willing to use the Constitution against that state.

But then, I’m not a leftist.

~McQ