February 2017 – On Liberty Watch

Mr. Bannon Goes to CPAC

In a fascinating address given at the CPAC annual convention, Trump political strategist Steve Bannon explicitly articulated the framework for the Trump Presidency over the next four years—and possibly beyond. His speech to the convention made it clear that the Trump Administration was not at all interested in tinkering around the edges. They mean to achieve structural reforms that, if enacted, will have profound effects on public administration for generations. (A video of his short speech is below.)

Bannon laid out what he referred to as three verticals that delineate policy areas that are the focus of the Trump Administration. They are:

National Security

Economic Nationalism

Deconstruction of the Administrative State

Bannon may call these policy areas as “verticals” but they are not isolated from one another; in fact they are inextricably intertwined. In some important ways they are at war with each other. It is for instance, flatly impossible to simultaneously deconstruct the Administrative State and implement a program of “Economic Nationalism”. That is because a program of Economic Nationalism is indistinguishable from a national Industrial Policy, which would ultimately be implemented by the bureaucracy. And it would face the usual problems of rent-seeking and regulatory capture.

Each of these three prongs will be addressed over time. Today, the focus will be on the idea of deconstructing the Administrative State, which lies at the heart of the agenda.

The Rise of the Administrative State

Excluding political junkies, public administration scholars, and specialists in administrative law, very few people are aware of how the modern Administrative State actually works in practice. The public thinks that policy is made when Congress passes legislation that becomes law upon being signed by the President. In reality, Congress does not pass “laws” as conventionally understood. Congress passes aspirations, e.g.—The Clean Water Act—and then as part of the law, instructs the relevant Agencies to promulgate rules to effectuate the law’s intent.

That’s where the trouble begins.

The devil is in the details, as they say, and the details are in the rules the Agency issues. After a comment period, the rules, possibly with adjustments, are then published in the Federal Register, at which point they have the force of law. This is where policy is actually made—in the rule making process. For example, to continue on with the Clean Water example, it makes a great deal of difference whether water is considered legally “clean” when it contains x quantity of pollutants per unit or y quantity of pollutants per unit. That type of decision is usually part of the rule-making process.

Unless Congress explicitly sets the standard when it passes a law, the regulatory Agency determines the standard. And according to current legal practice, Courts are supposed to show deference to Agency interpretation of the language of the law, even to the point where Courts are required to overturn their own interpretations of a law when it conflicts with Agency interpretation. This is known as the Chevron Doctrine, named after the Supreme Court’s ruling in Chevron v. Natural Resources Council (1984).

The Chevron ruling supercharged the growth of the Administrative State by increasing the power of the Agencies vis-à-vis the Courts and the Congress. Agencies clearly have an incentive to get the first shot at issuing an interpretation of a statute that enhances the Agency’s power, particularly if the Courts are supposed to show it deference. Moreover the Executive branch has an incentive to get an Agency to issue friendly interpretations of a statute before it is contested in a civil Court, because doing so would strengthen its case in the event of a subsequent lawsuit. The Obama Administration was famous for this, although the Courts did slap down the attempt to circumvent the law by obvious and deliberate Agency misinterpretations of it.

That said we now live in a society in which every facet of modern life is subject to direct or indirect regulatory review. Not only do the regulatory Agencies have an iron clad grip on the process, they are largely impervious to outside oversight. It is virtually impossible to effectively discipline, must less terminate, an incompetent civil servant. Moreover, some Agencies have investigative powers. Some have enforcement powers. Some have criminal enforcement powers, some civil. Agencies also have their own administrative courts—where the judges are selected by the Agency and the judges are employees of the Agency. In effect, some Agencies have the power to act as judge, jury and prosecutor.

The growth of the Administrative State means that policy formation and governance is left largely to an unaccountable bureaucracy with its own agenda. More accurately it represents a set of sometimes competing, sometimes-aligned interests and agendas operating far from pubic view. To the extent that an Agency is captured by an outside interest (often the case) it represents that interest rather than the public interest. The EPA for instance acts like a branch office of the Sierra Club. The Export-Import bank is an important source of subsidies for Boeing. And the weapons procurement bureaucracy at the Pentagon is in a league of its own.

It is clear, or ought to be, that the tremendous growth of the bureaucracy and its subsequent rule-making has stunted innovation, raised the cost of doing business, and has acted as a brake on competition by protecting existing businesses at the expense of potential new entrants into the marketplace. But that is not the worst of it. The worst of it is that it has upended the system of checks and balances that fosters healthy debate and forces compromise among competing interests. It has allowed Congress to pass aspirations instead of laws while leaving the heavy lifting for the bureaucracy. If things turn out well, Congress takes credit. If not, it’s obviously the fault of bureaucrats.

Deconstructing the Administrative State

Deconstructing the Administrative State is a project that virtually all libertarians can support. It is a project that will take years, if not decades to complete. Where to begin?

Executive Orders that overturn prior Executive Orders on matters that should have been decided by Congress are a good place to start. Not only does this teach the lesson that, in general, policy ought to be made by Congress, it reinforces the notion that truly durable policy ought to be formed in the give and take of democratic politics.

There is legislation before Congress right now that would require Congress to approve regulations that impose costs of $100 million or more. The House passed the REINS Act of 2017 on January 5, 2017. It would require a joint resolution of Congress approving all major rules until they can go into effect. That would force Congress to put its fingerprints on regulations that matter, thus forcing democratic accountability on Congress. It would also push the bureaucracy to be more accountable to Congress, thus restoring some of the checks and balances that have been lost over the years.

Another step the Congress should take is to pass legislation that overrules Chevron v. Natural Resources Council. There is no good reason why the Courts should show deference to an unaccountable (to the public) bureaucracy. Such deference is not only profoundly undemocratic; it invites abuse, and empowers the bureaucracy at the expense of the people’s elected representatives.

These three actions are a good place to start. But it is only a start. There is still a long way to go after that.

The Politics of Deconstruction

The political challenge of deconstructing the Administrative State is immense. Bureaucracies are quite adept at developing coalitions to protect them and their budgets. As a result, the inevitable failures of the bureaucracy are inevitably followed with perverse cries for more money—and they get it. Failure is rewarded, not punished. Remember the VA scandals of a few years back? Guess whether the VA budget today is larger or smaller. Hint: the correct answer isn’t smaller.

But the problem is a lot deeper than mere bureaucratic incompetence and perverse incentives. The problem is that regulatory Agencies are a means to an end desired by Progressives. That end is government by bureaucratic experts. More precisely it is government of, for, and by experts rather than elected representatives. It is profoundly undemocratic, inherently unaccountable and structurally incompatible with the U.S. constitutional order.

The U.S. constitution is designed “to secure the blessings of liberty” as the Declaration of Independence puts it. It does so by strictly limiting what government may legally do, leaving the pursuit of happiness to individuals, whose freedom is protected by government. That freedom inheres to the individual; it is a product of natural law, and is therefore pre-political.

The Progressive view, that the Constitution is a “living, breathing document” is fundamentally in conflict with the natural law interpretation. Where the natural law interpretation assumes men have rights by birth, the Progressive view is that rights come from the State. The natural law view sees property and contract rights as fundamental to men’s freedom and the pursuit of happiness. The Progressive view sees the pursuit of happiness in terms of entitlements. We are to be free from fear; we have a right to be well clothed, well housed and well fed.

While the natural law interpretation seeks to restrain government so as to allow maximum individual freedom, the Progressive view seeks to throw off restraints on government so that it can deliver the good life that men cannot achieve on their own. The mechanism to deliver the Progressive promise is the bureaucracy of the Administrative State. The Madisonian separation of powers in the U.S. constitution, designed to protect freedom, is an anathema to Progressives because it stands in the way of the Wilsonian goal of efficiency in administration.

And so when Steve Bannon said that the deconstruction of the Administrative State was a key policy goal of the Trump Administration he threw down the gauntlet. Deconstructing the Administrative State robs the Progressive movement of its prime tool, which is the bureaucracy. Deconstruction of the Administrative State leaves it an empty, powerless shell. Deconstructing the Administrative State and restricting government to its core legitimate functions would re-invigorate individual freedom and effort, leading to an explosion in economic growth and well-being, and a reduction in dependency.

The public policy question is, as always: markets or collectivism? The natural law viewpoint embedded in the constitution favors markets and individual freedom. The Progressive movement favors collectivism and central planning. The bureaucracy is its indispensable tool for command and control. Progressives and leftists of all stripes, trapped in the jejune utopianism of the 1960s, will fight with everything they have to squeeze a 21^st century economy into a 1930s bureaucratic structure and the stasis that goes with it.

Because the stakes are so high, the political battle will be fierce. Winning the battle will be a long and difficult process. But the choice is clear: freedom and dynamism or collectivism and stasis.

JFB

Chaos

“Can’t anyone here play this game?” – Casey Stengel addressing the Mets.

Well, that was quick. After serving something like 3 weeks in the Trump Administration, General Mike Flynn was forced out as National Security Advisor. The proximate cause of the ouster was that Flynn misled Vice President Pence about his contacts with the Russian Ambassador in December after the election, but prior to President Trump’s inauguration. According to the New York Times, the Justice Department advised the White House that Flynn had not been “fully forthright” about his conversations with the ambassador.

The FBI had been examining Flynn’s phone calls as more questions were raised about his dealings with Russian officials. The FBI apparently decided that Flynn was subject to blackmail for covering his tracks with respect to what he told the White House. It also turns out that the Army has been investigating whether Flynn took money from the Russian government in a trip to Moscow in 2015. That could be a violation of the Emoluments Clause of the Constitution.

For his part, General Flynn, in his resignation letter, implausibly claimed that he had inadvertently briefed then Vice-President elect Pence with “incomplete information” because of “the fast pace of events”.

Needless to say there are lots of calls for a Congressional Investigation. And predictably enough Democrats are asking what did the president know and when did he know it? Plenty of Republicans are wondering as well. According to Sean Spicer,
Trump knew for weeks that Flynn was lying and that after evaluating the situation, Trump asked for Flynn’s resignation. If that is true, it leaves open the question of why a replacement was not already waiting in the wings.

Let’s unpack what is going on here.

For starters, General Flynn was incredibly foolish. He had to know that his contacts with Russian officials were being monitored. (Whether they should have been is another matter entirely.) If it is in fact true that he lied to Pence, he had to go. And if the Director of National Security can’t remember the substance of his conversations with Russian officials, that’s a reason for dismissal as well.

Importantly, we do not know whether Flynn’s behavior was sanctioned by Trump, or whether he went off the reservation, and if so, why.

Leaving aside the apparent violation of protocol (imagine that, a Trump official violates protocol) let’s not kid ourselves about what is going on with the Army’s investigation of Flynn’s financial dealings with the Russian Government. It is a potential test case for the Emoluments Clause, which the Democrats intend to use when they get around to impeaching Trump in 2019 if they take control of Congress in the mid-term elections. Trump being Trump, he seems determined to give them plenty of ammunition.

But let’s not get carried away. Sloppy transitions are not all that unusual. George Stephanopoulos didn’t last very long in the White House briefing room before that responsibility was turned over to Dee Dee Myers, who also didn’t last very long. Mike McCurry finally took over. It took the first Clinton Administration 2 failed attempts to get an Attorney General before settling on Janet Reno. Remember Zoe Baird and Kimba Wood? And that was when the same party controlled the White House and Congress.

Clinton’s first chief of staff, Mack McLarty a childhood friend was appointed in January 1993 only to be replaced by Leon Panetta in July 1994. Then there was the nomination of Bobby Inman as Secretary of Defense in January of 1994 to take over from Les Aspin after the fiasco in Mogadishu that was the subject of the book and later the film “Black Hawk Down”. Inman subsequently withdrew a few days later after a rambling speech on national television in which he attacked imagined enemies. William Perry later took the job.

Once again with the Trump Administration it is worth remembering Napoleon’s aphorism never to ascribe to malice that which is easily explainable by incompetence. Now would be a good time to get a few adults in the White House the way Clinton eventually did when he hired people like David Gergen and Leon Panetta. Otherwise, Trump, who is rapidly being schooled in the ways of the Beltway, stands a not-insignificant chance of being impeached down the road.

JFB

A Win for School Choice

The Teacher’s Unions launched an all-out blitz against Betsy DeVos, Donald Trump’s nominee to be Secretary of Education. In the end she was confirmed, but just barely. After 2 Republicans and all Democratic Senators voted against her, it took the vote of Vice President Mike Pence to break the tie and put her over the top 51 – 50.

The hysteria over the DeVos nomination was evident in the Senate debate in the opening statement made by Senator Patty Murray (Washington, D) Ranking Member of the Senate’s Health, Education, Labor and Pensions Committee. Senator Murray rose as she put it “to strongly oppose Betsy DeVos and her plan to privatize public schools and destroy public education in America.” That gem, Trumpian in its subtlety and nuance, can be seen at about 17 seconds into her opening statement, shown in the video below.

Senator Murray probably didn’t come up with that one all by herself. Her puppet masters, the Teachers Unions did. Listen to Randi Weingarten, President of the American Federation of Teachers. She said that “In nominating DeVos Trump makes it loud and clear that his education policy will focus on privatizing, defunding and destroying public education in America”.

What Senator Murray is actually complaining about is the fact that Betsy DeVos is an ardent champion of charter schools and using vouchers to give parents the power of choice in the education marketplace. Not only that, she has actually spent her own money to promote the idea. But Senator Murray, who attended St. Brendan’s Catholic School and who routinely describes herself as “pro-choice” is bound and determined to prevent parents from exercising choice in their children’s education.

Let’s understand the politics here. There is a furious battle to define the issue because (leaving aside vested interests) polling data indicate that while the public (and especially minorities) tends to look favorably on school choice, the support is soft, and often dependent on how polling questions are worded. That said, there is a reason why reactionary liberals, of which Murray is one, resist any and all efforts to reform public schools. For them it has nothing to do with students. Public schools are a jobs program for a special interest group that showers them with campaign money and campaign workers.

And so at all costs, they resist experimentation and defend failure. Statistics published by the OECD and the National Assessment of Education Progress (NAEP) show the abysmal results coming out of the public school system. Among the 34 countries of the OECD the U.S. is about average in reading. But in mathematics, it ranks 27th while spending more than most. The OECD found that “Students in the United States have a particular weakness in performing mathematics tasks with higher cognitive demands, such as taking real-world situations, translating them into mathematical terms, and interpreting mathematical aspects in real-world problems.” But, “Students in the U.S. are largely satisfied with their school and view teacher-student relations positively”. In other words they are perfectly happy to be mediocre at best.

The NAEP statistics, some of which are summarized in the Table below, are in some respects even more appalling. Of 8th graders in America, only 33% are at or above proficiency in mathematics. In reading it is only 35%. The black / white gap in mathematics is stunning. Some 43% of white 8th graders are at or above proficiency, but only 13% of black students are. The only group that scores well is that of Asian and Pacific Islanders. In math and reading, they score at or above proficiency at 59% and 52% respectively.

Let’s cut to the chase. Does anybody seriously think that the public schools are serving minority students well when only 13% of black 8th graders are at or above proficiency in mathematics? And without the rigors of competition to replace union rules why would anyone expect this unconscionable state of affairs to change? The answer is, it won’t.

Upper class and upper middle class parents regardless of race do not face the same problem getting an education for their kids. They have the wherewithal to send their kids to private schools. As a result, public schools in well-to-do districts actually face real competition, which is one, but only one reason why schools in wealthy areas perform better. In addition, good schools are capitalized into housing prices, putting those schools out of reach for low-income families who can’t afford to buy homes in wealthy neighborhoods. They are effectively trapped in failing schools without a way out.

This tendency, and its racial effects, was recently emphasized in a study published by the New School in New York’s Greenwich Village. The study found that more than half of the city’s public schools are more than 90% black and Latino. The study’s authors attribute this level of segregation to the tendency of wealthy parents to “vote with their feet”. Rather than risk sending their kids to a neighborhood school with a history of low test scores, they opt to send their kids to private and charter schools. So conventional public schools are abandoned and wind up being islands of academic failure, largely for poor and minority kids.

Educational opportunity ought to be the Civil Rights battle of the early 21st century. But it, like just about everything else, seems to have become a partisan issue, although it remains true that people from across the ideological spectrum have favored different forms of school choice. Milton Friedman the famous libertarian economist was an ardent proponent of school vouchers. Eva Moskowitz, a liberal Democrat, is a strong proponent of Charter Schools. Governor Andrew Cuomo has sided with Moskowitz against Mayor Bill DeBlasio in Charter School political battles.

School choice is not a panacea. There are no panaceas. But there is evidence that strongly suggests that well-run charter and private schools produce results that are measurably better than public schools at statistically significant levels in poor areas. What is beyond serious dispute is that public schools, in poor areas without effective competition, have produced failure. And there is no incentive for them to improve. It is unconscionable that is allowed to continue and that politicians go on protect failing schools by resisting experimentation and innovation.

On June 11, 1963, George Wallace, the Governor of Alabama, stood in the school house door at Foster Auditorium at the University of Alabama to try to block the entry of two black students, Vivian Malone and James Hood. Wallace’s was a forlorn attempt to keep his campaign pledge of “segregation now, segregation tomorrow, segregation forever”.

Intentions aside, Patty Murray and her colleagues are slamming the door on minority and disadvantaged students no less forcefully than George Wallace tried to do in 1963. The saddest part of all is that up until this point, Murray and her colleagues have been more effective than Wallace.

Perhaps that is about to end.

JFB

Neil Gorsuch On Deck

Donald Trump’s nomination of Neil Gorsuch to be the next Associate Justice of the Supreme Court is something that should cheer libertarians during a time when their hasn’t been much to cheer about. Judge Gorsuch has often been described as coming from the same mold as Antonin Scalia. But while both Scalia and Gorsuch have described themselves as originalists, Gorsuch’s sensibilities appear to be be far more libertarian than Scalia’s, whose sympathies tended to have a more of a majoritarian bent. Moreover, Gorsuch appears to part company with Scalia in an important area of Administrative law, namely the Chevron doctrine. More about Chevron later.

The hysteria generated by the nomination is impressive if for no other reason than the way it exposed left-wing gullibility. For example Salon managed to make Rolling Stone’s reporting look meticulously researched by comparison when they published and then retracted a claim that Gorsuch founded and led an organization named “Fascists Forever” while he attended an elite Jesuit prep school. The fact that the charge was taken with an ounce of seriousness, though obviously preposterous on its face, simply points to the credulousness of reporters who were only writing about fake news a couple of days ago.

It is understandable that Progressives are dismayed by the choice of Gorsuch to replace Scalia on the Court, because Gorsuch’s jurisprudence is a dagger pointed at the heart of the 100 year old Progressive Project. The underlying theory of that project is that government, staffed by the best and brightest, knows what’s best. And because government knows best, it will adopt the role of Plato’s Philosopher King and manage the lives of its citizens by controlling and limiting their choices through the regulatory mechanisms of the Administrative State.

It was then-Professor Woodrow Wilson (at Bryn Mawr 1887) who articulated the rationale for the bureaucracy that would grow into today’s beast. He argued that the complexities of modern life (remember this is in 1887) required a government by experts with large powers and unhampered discretion. The separation of powers that Madison devised to protect freedom by constraining government, was something to be scorned. It was simply an impediment to efficiency.

The huge, unaccountable and often coercive bureaucracy of the modern Administrative State is the result. Virtually every aspect of citizens’ lives is regulated various levels of bureaucracy. Obamacare, for instance, requires citizens to buy health insurance. The EPA determines how much water should be used each time a toilet is flushed. It is virtually impossible to build a bridge, road or pipeline anywhere without running into a wall of regulatory resistance. Couples without children are forced to buy health care insurance for the children they don’t have. Entry and exit into virtually every business in the country, from banking to nail salons to flower shops requires some sort of licensing by some government agency. Regulators have even shut down the occasional front-yard lemonade stand for reasons of non-compliance with some regulation.

One of the best measures of the growth of Administrative State is the size Federal Register, which contains proposed regulations from agencies, finalized rules, notices, corrections and presidential documents. The Federal Register was 2,620 pages long in 1936. By the end of 2015 it had topped 80,000 pages.

Pages in Federal Register

The National Association of Manufacturers estimated that the annual cost of regulations at about $2 trillion. Using a similar methodology, the Competitive Enterprise Institute estimated the annual cost at about $1.88 trillion. The Mercatus Center at George Mason University estimates that regulations that distort investment decisions have reduced average annual growth in the U.S. by 0.8% from 1977 to 2012.

These regulations are almost always marketed as regulations on businesses, but the reality is that the costs are almost always borne by consumers. Not only that, the well-connected are also accomplished at extracting economic rents through the strategic use of regulations, including the imposition of regulatory costs on their competitors. For their part, regulators are only too willing to play this game of regulatory capture because they travel back and forth between the bureaucracy and the businesses they oversee, supposedly on behalf of the people.

To make sure that the game goes on the Administrative Agencies have their own administrative courts, with the judges appointed by Agency heads. So the Agencies get to play judge, jury and prosecutor. And the (non-agency) courts have traditionally shown deference to Agency interpretations of regulations, thus closing the loop on citizens who naively believe that law-making should be done by the legislature and that the laws should mean what they say, rather than what some bureaucrat wants them to say.

That is where Judge Neil Gorsuch comes in. He has challenged the idea that the courts should show deference to government Agencies, a standard known as the Chevron doctrine, named after the Supreme Court’s ruling in Chevron v. Natural Resources Council (1984). In Chevron the Court ruled that courts must defer to an agency’s reasonable interpretation of an ambiguous statute that it administers. By 2005 that ruling had been broadened extended in NCTA v. Brand X Internet Services. In that case the Court held that courts must overrule their own interpretations about the meanings of existing laws in favor of later agency interpretations that satisfy Chevron.

Then in Gutierrez-Brizuela v. Lynch (2016) a unanimous panel granted an illegal alien’s petition for a review of a Board of Immigration Appeals order that denied his eligibility to apply for lawful residency. In a concurring opinion Gorsuch wrote that the Chevron standard “[permitted] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design”. He went on to call for the Supreme Court to reconsider the soundness of the Chevron doctrine. (See Ed Whelan in National Review for more detail on these and other relevant cases).

Writing in National Review, Ed Whalen summarizes these cases and goes on to argue that the Chevron rule of judicial deference is ideologically neutral. It depends, he writes, on who is running a given Agency at a given time.

I disagree with that part of his analysis.

The entire Progressive project requires a massive bureaucracy vested with substantial power and discretion to manage the Administrative State, and through it the lives of the citizens. Moreover, the Administrative State will necessarily struggle for dominance over those institutions of civil society that protect citizens’ individual freedoms. That is because the goal is efficiency in the Public Administration, not the protection of liberty that the Madisonian architecture of government demands. In the Administrative State freedom is neither real nor inherent; it is merely instrumental. Hence the hysteria by the left over Citizen’s United.

Free markets provide free choices for consumers, but they are an anathema to the command-and-control mentality of the Administrative State. Freedom of speech and assembly, and the right to the free exercise of religion means that citizens have an inherent right to those activities; those rights pre-exist government. It is the government’s responsibility to secure those rights. Legitimate government authority is limited to its enumerated powers in the Constitution. But religious institutions have a claim to a higher authority, which is why religious freedom is so important for individual freedom. It is why, for instance, government may not legally force a priest to testify about what he heard in the Confessional.

This does not sit well with secular progressives. Which is why there is on ongoing campaign to weaken religious institutions and diminish their authority by bending them to the will of the State. It is why, for instance, the Obama administration attempted to force the Little Sisters of the Poor to provide contraceptives and abortafacients against their religious objections. It is why John Podesta, as revealed in his leaked e-mails, was looking for a way to undermine the Catholic Church so as to make it a political instrument of progressives. And let’s not forget that it was Obama who dismissively referred to people who “cling to their guns and religion.”

Nor is government a neutral observer in the culture wars. It actively promotes a progressive agenda through the bureaucracy. That is why it forces bakers and photographers to participate in same sex wedding ceremonies rather than to carve out religious exceptions. Anyone who doubts this should ask why it was otherwise OK for pop singers, fashion designers and movie stars to refuse to participate in Trump’s inauguration ceremonies, but a photographer can be forced against his religious beliefs to participate in a wedding ceremony. Or, for that matter, why locker room use has become the current obsession of the left.

Anyway, back to Neil Gorsuch. In his writings he has challenged the Chevron doctrine. That doctrine has supercharged the growth of the Administrative State and the vast bureaucracy it depends on to rule. Moreover, he has made clear the importance he places on the free exercise of religion as guaranteed by the First amendment. For instance he ruled in favor of the Little Sisters of the Poor and Hobby Lobby. (A brief summary of his record on religious liberty cases is available here.) In a clash between government power and the free exercise clause, it is pretty clear where Gorsuch stands.

The modern progressive State needs a vast bureaucracy to rule. And this modern progressive bureaucracy is at war with the Constitution as it was originally written. The progressive dream (more like a nightmare to the community of the sane) of an efficient central bureaucracy to manage the country cannot be squared with the separation of powers embedded in the structure of the U.S. Constitution. The Constitution is the mechanism designed to secure the blessings of liberty promised in the Declaration of Independence. It is designed to constrain, not empower government, so that individuals can have maximum freedom to live their own lives as they see fit.

Judge Gorsuch’s defense of religious liberty, freedom of speech, for that matter the entire Bill of Rights, and his challenge to the Chevron doctrine and therefore the primacy of the bureaucracy over liberty make him a deadly threat to the progressive project. Which is why, despite his having graduated from Columbia, Harvard Law, and Oxford (for his D.Phil.), progressives will pretend that he is “out of the mainstream” and therefore not qualified to be an Associate Justice. The irony is that Judge Gorsuch is precisely the type of judge who gives every indication that he will not hesitate to rule against the Trump Administration as it seeks to increase executive power. Liberals ought to think about that; Progressives are probably too far gone.

Judge Gorsuch will become the next Associate Justice. The only question is whether or not the Democrats try to filibuster. If they do, Mitch McConnell will go for the nuclear option, using Harry Reid’s destructive precedent, and Gorsuch will be confirmed with less than 60 votes. Plenty of Republicans would like to see it happen this way, because it will make the (possible) second nomination that much easier.

While Libertarians ought to be pleased about the choice of Gorsuch, they ought to be wary of another procedural blocking point—the filibuster—falling by the wayside. We can add that possibility to the long list of destructive consequences arising from the work of Harry Reid.

JFB

P.S. The video below, well worth watching, is a discussion of Gorsuch’s nomination by Randy Barnett, the libertarian law professor from Georgetown.