The New York Times on Sunday published David French's extended interview with Supreme Court Justice Neil Gorsuch about Gorsuch's new book (co-authored with Janie Nitze, his former law clerk), Overruled: The Human Toll of Too Much Law. (Full disclosure: I haven't read the book, which comes out this week.) Justice Gorsuch comes across in the interview as an interesting, idiosyncratic, and humane judge who marches to the beat of his own drum. His primary preoccupation is the fate of the little guy: indigenous peoples, criminal defendants, and especially small business owners caught in a complex web of burdensome regulations.
Justice Gorsuch devotes much of the interview (and presumably the book) to explaining his aversion to administrative regulation. This is obviously a timely topic in light of the Court's recent decisions weakening administrative agencies in various ways. Though these decisions do not dismantle the administrative state, collectively they constrain agency authority and empower courts to second guess agency decisions. Loper Bright v. Raimondo overrules Chevron deference. The major questions doctrine denies agencies the power to tackle "major" problems unless Congress has specifically delegated such authority. SEC v. Jarkesy limits agencies' ability to conduct internal enforcement proceedings against entities that have allegedly violated agency rules. Corner Post v. Board of Governors of the Federal Reserve System holds that the statute of limitations for challenging agency action is not tolled until the specific plaintiff has been injured. Ohio v. EPA seemingly expands courts' ability to hold agency action arbitrary or capricious. And so on.
Justice Gorsuch joined all these decisions. He wrote the majority opinion in Ohio v. EPA and penned enthusiastic concurrences in several of the other cases. Clearly, he is an important driver of this anti-administrative project.
French's interview doesn't get into the doctrinal weeds of any of these cases, which involve a wide variety of legal issues. Rather, Gorsuch uses the forum to explain more broadly his skepticism of administrative regulation. Big businesses, he explains, can manage regulations just fine because they have the resources to hire lawyers and compliance teams. Individuals and small businesses, by contrast, bear the real brunt of over-regulation. Gorsuch offers a few stories of sympathetic people ruined by complicated, unreasonable regulatory regimes. Though he doesn't exactly put it this way, he clearly sees the Court's recent anti-agency decisions as a way of vindicating the ordinary American against oppressive big government. In essence, Gorsuch is saying, "Here's why I'm doing this."
There's certainly something to Justice Gorsuch's concerns. He's right that regulations are often complicated and sometimes overly burdensome. Some impose terrific costs that far outweigh their benefits. As he explains, those costs can damage individual's lives in profound ways. And Gorsuch is probably also correct that progressive defenders of the administrative state don't spend enough time grappling with those real harms. (I include myself among the guilty, though I do address a closely related problem here.)
That said, while Justice Gorsuch's concerns for the little guy are laudable, they do not, in my mind, justify the Court's recent administrative law decisions. Indeed, to the extent Gorsuch apparently believes his concerns justify those rulings, his reasoning is deeply flawed.
Most fundamentally, assuming arguendo that Gorsuch is correct that too many regulations inflict serious harm on people, why should courts take it upon themselves to fix that problem? Gorsuch's argument is that over-regulation is bad public policy, but the relative merits of governmental policy fall squarely within the expertise and constitutional prerogatives of the political branches. Federal judges, by contrast, lack the training and legal authority to design regulatory policy. Justice Gorsuch may provide good reasons to reconsider the wisdom of the administrative state, but his interview doesn't explain why judges should fix this problem. (Perhaps Gorsuch takes these issues up in the book.)
Second, Gorsuch's core argument appears to be that regulation does more harm than good, but at least in the interview he examines only one side of this coin. He is clearly correct that some regulations are costly and unjust, but he barely acknowledges regulations' importance in protecting society from environmental harms, financial market fraud, unsafe drugs, workplace hazards, and other dangers to human and societal well-being. Justice Gorsuch seems to think that the Court's significant overhaul of administrative law is justified because administrative regulation cumulatively inflicts serious harm on ordinary Americans. Informed policy analysis, however, considers both costs and benefits, but Gorsuch bases his conclusions on one without the other.
Third, and relatedly, the relative costs and benefits of regulation is fundamentally an empirical question, but Gorsuch's analysis is anecdotal.....
No comments:
Post a Comment