From Wikipedia. On Thursday, Sept. 19, 2019, U.S. Supreme Court Justice Neil Gorsuch spoke at the LBJ Presidential Library as the sixth annual Tom Johnson lecturer.
“OVER RULED – THE HUMAN TOLL OF TOO MUCH LAW”– JUSTICE GORSUCH’S BOOK IS A CALL TO RETURN TO THE CONSTITUTIONAL DESIGN AND MADISON’S DREAM OF A TRUE REPUBLIC BASED ON FEDERALISM
OVERVIEW & INTRODUCTION
Supreme Court Justice Neil Gorsuch speaks to us in this book with his typical judicial acumen but combines it with real stories that depict an out-of-control Congress. A Congress that has allowed an administrative state to become a hybrid fourth branch of government armed with both enforcement and quasi-judicial authority. A Congress that has, to date, enacted laws that define at least 5,000—that is, five thousand—crimes, many of which are overbroad and vague. He notes that commentators believe that any American over the age of 18 may be committing at least three of these every day! This is coupled with a list of agencies that exercise both quasi-judicial and executive functions that seem to have propagated under various administrations, fueled by the turbocharged effect of the so-called Chevron deference doctrine that has been neutering Article III courts since 1984. Real Americans seeking to earn a livelihood, businesses seeking to start up, and people just trying to live peaceful and productive lives falling victim to nameless, unelected bureaucrats interpreting regulations in such a manner to further empower their agencies reach. The federal bureaucracy would enter any judicial challenge by these real people with a significant head start—think of a drag race where the right lane gets a car-length lead. Justice Gorsuch sets the stage by looking back at the early days of the Republic and noting James Madison’s warning for not only future generations but also in defining the policy underlying the miracle of our Constitution:
James Madison contemplated the dangers to individual freedom, equal treatment of persons, and respect for the law itself when a nation’s laws are allowed to grow “so voluminous that they cannot be read, or so incoherent that they cannot be understood…or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”
Justice Gorsuch skillfully utilizes actual stories that highlight actions of the vast bureaucracy that have destroyed lives, created insurmountable hurdles to innovation, and defines a new mission for both society and judges who are faithful to their oath: to protect individual freedom from vague and overbroad laws and redefine federalism as contemplated by the Framers as a quid pro quo for Constitutional ratification. Here are some examples that should outrage all but the staunch progressives who believe that state action and sovereignty are afterthoughts. He also, of course, examines the vast executive overreach during COVID and outlines the threat to precious personal liberty as the result of the abuse of so-called “emergency” authority. An excellent and honest assessment of how much went wrong and how society and the courts can take freedom back.
JOHN AND SANDRA YATES AND THEIR FISH
On a warm day in 2007, John Yates, a commercial fisherman who rose from deck hand to ship owner and captain, was visited while fishing by a state enforcement agent deputized by federal authorities and enforcing federal law. The agent stated that he was going to inspect and measure all of the two thousand pounds of fish in his hold. At the time, the federal limit was 20 inches. After some eight hours of going through hundreds and hundreds of fish, the agent found that 72 of them were undersized, but only three were under 19 inches, and each of these was at least 18.75 inches. The agent said that these fish were to be left in a cooler, and he would return and retrieve them. The next day, he came and found only 69 undersized fish. He suspected that these fish were not the same as those he had measured before but had no real record that detailed this. Mr. Yates denied wrongdoing and claimed the fish had lost volume and were not measured properly. John and his wife Sandra heard nothing for 3 years—yes, 3 years—when, in 2010, federal agents surrounded his house, arrested him, and charged him with criminal violations of the Sarbanes-Oxley Act. This Act came on the heels of the Enron case and spoke to the destruction of financial records or documents with the intent to impede an investigation. The real controversy came as it also prohibits the destruction of “tangible objects”—not contemplated, one would argue, to include “fish” given the public policy underlying the law. Fast forward to a criminal conviction, the loss of his livelihood and his dreams, and an affirmance of this travesty by the Eleventh Circuit Court of Appeals. John and Sandra didn’t give up and appealed to the Supreme Court, an incredible long shot. Seeing an injustice and a very ambiguous law, the Supreme Court held in 2015, 8 years later and too late for the Yates, that yes, the law meant destruction of tangible objects meant to record or preserve information, NOT all objects in the physical world. Especially fish. Mr. Yates, once a successful fisherman who denied any wrongdoing and acted in good faith, now lives in a trailer with his wife and endures a subsistence life on Social Security. A GoFundMe should buy him a new house and a boat, as he lost both defending himself against tyranny.
Armed with a vague statute and an out-of-control agency, any Department of Justice lawyer or ambitious United States Attorney can destroy careers—ask Governor McDonnell, Mr. Yates, and scores of others.
ERNEST HEMINGWAY’S SIX TOED CATS AND THEIR PROGENY
A well-known feature of Hemingway’s home in the Florida Keys are the descendants of his favorite six-toed cat, Snow White, whose offspring over the years became scores that roam the property and the home and provide photo opportunities and, apparently, good luck. Tourists come just to see them. They are well cared for, and a local veterinarian looks after their health. The State of Florida apparently has no issues, and neither did PETA, which declared that the cats were happy and healthy. Imagine that.
Enter the federal bureaucracy and its faceless lawyers.
For years, federal officials, apparently using some jurisdictional basis not surprisingly interpreted by a Department of Agriculture attorney, kept issuing edicts, including that the cats couldn’t leave the walls and had to be caged to be “safe.” This led to statements that a night watchman needed to be hired to monitor them, and maybe a “hot wire” needed to be added to the museum’s walls so that they could be shocked back into the compound! They also said that under one of the thousands of pages of the Code of Federal Regulations, again interpreted by an agency lawyer, that they needed a license. The museum was placed under surveillance, fines were levied at $200 per day in some instances, and, ultimately, the agency declared it might be forced to confiscate the historic felines. This went on for five years, as agents would go to the Keys on vacation and videotape the cats’ movements. Finally, the Museum Trust took to the courts to contest the agency’s oversight and overreach, but the trial and appellate courts under Chevron deferred to the agency’s interpretation of its own authority. Preposterous. The museum spent $200,000 trying to comply with ever-changing directives, and much more was spent by American taxpayers in the name of protecting cats that were just fine. Chevron had to go, and the right court had to do it. Read on.
LOPER BRIGHT v. RAIMONDO, 144 S.Ct. 2244 (2024), ENDS THE CHEVRON ERA
Although the case had not been decided when Justice Gorsuch’s book was being finalized, this case finally put an end to federal courts having to defer to “reasonable” agency determinations of regulations and the elbowing out of Article III courts stare decisis role and mandate to definitively say what the law is. In Loper Bright, a cash-strapped family fishing business (the Supreme Court loves fishermen), would have been forced to pay for a fisheries agent to monitor their catch while underway. Yes, really. After all, the agency lawyer said so.
For years, agencies had interpreted laws and regulations and resolved “ambiguities,” leaving perfectly smart and capable judges to merely shrug their shoulders. Just think—an agency was enabled to frame the borders of its own authority and impose its will in ways that Justice Gorsuch outlines in his book. In his majority opinion in Loper Bright, Justice Gorsuch ended this extreme administrative and executive tool for overreach and returned to Congress and the courts their proper role. The left is now as apoplectic as their favorites; “pen and phone” actions as well as agency attacks on whole industries will be less effective. An executive utilizing a hand-picked agency head to go after, as Obama did, the coal industry in West Virginia or imposing DEI and “free stuff” wealth distribution schemes like student loan forgiveness will be short circuited.
Only a Congress that understands the value of the Republic, the danger of federal chokeholds on state police powers, and the good faith determination of their citizenry, as well as a President who understands the threats of runaway lawmaking and the stunting effect of regulation, will save this Republic. Kamala Harris wishes to expand the administrative state to impose cost controls in a free-market economy hobbled by Green New Deal fantasies. That is just a start. Remember this in November.
Mike Imprevento
August 2024
