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The First Gorsuch Was Too Much

Don’t let the slights of the mother be avenged by the son

These scandals seem to occur as corporate influence comes to dominate the policy agenda and industry interests seek to roll back environmental protections from the inside of government.“ ~~~ Bill Wolfe (7/30/08)

[Updates below]

What happens to a 13 year old boy who is forced to watch his mother’s ideology and character savaged by eastern liberal elites (“environmentalists”), who destroy her reputation as she is humiliated by the press corps on a national stage?

Does he internalize that trauma as a deep emotional resentment? Does he bear a grudge?

Does he seek a form of revenge by attending Eastern liberal universities – Columbia, Harvard, Oxford – to enter the belly of the liberal beast and intellectually compete, all to avenge his mother’s radical corporate, anti-regulatory, state’s right’s ideology?

Does he share her deep character flaws? Conservatives stress that “character is destiny” – psychological makeup forms the basis of character.

Although Freudian psychoanalysis has been discredited in some quarters, these are legitimate issues for the Senate to probe.

The Senate better ask Judge Gorsuch about all that, a man-child who Donald Trump just nominated to be a Supreme Court Justice.

This brings us to a question about the strange career of Anne Gorsuch Burford, Judge Gorsuch’s mom.

For those who are too young to know of or those that can’t recall, let’s recap Mrs. Gorsuch’s legacy and see if we can hear any echoes to today’s debates (from the Washington Post):

Anne Gorsuch Burford, 62, Dies; Reagan EPA Director
By Patricia Sullivan
Washington Post Staff Writer
Thursday, July 22, 2004; Page B06

Anne M. Gorsuch Burford, 62, the Environmental Protection Agency director who resigned under fire in 1983 during a scandal over mismanagement of a $1.6 billion program to clean up hazardous waste dumps, died of cancer July 18 at Aurora Medical Center in Colorado.

Her 22-month tenure was one of the most controversial of the early Reagan administration. A firm believer that the federal government, and specifically the EPA, was too big, too wasteful and too restrictive of business, Ms. Burford cut her agency’s budget by 22 percent. She boasted that she reduced the thickness of the book of clean water regulations from six inches to a half-inch.

Republicans and Democrats alike accused Ms. Burford of dismantling her agency rather than directing it to aggressively protect the environment. They pointed to budgets cuts for research and enforcement, to steep declines in the number of cases filed against polluters, to efforts to relax portions of the Clean Air Act, to an acceleration of federal approvals for the spraying of restricted pesticides and more. Her agency tried to set aside a 30-by-40-mile rectangle of ocean due east of the Delaware-Maryland coast where incinerator ships would burn toxic wastes at 1,200 degrees centigrade.

Ms. Burford was forced to resign after she was cited for contempt of Congress for refusing to turn over Superfund records, arguing that they were protected by executive privilege. Ms. Burford acted under President Ronald Reagan’s orders, with the advice of the Justice Department and against her own recommendation, her colleagues told the press at the time. A few months later, in what one of her aides called a “cold-blooded, treacherous act of political callousness,” the Justice Department announced it would no longer represent her because it was involved in investigations into corruption at the EPA.

The New York Times wrote about the Gorsuch corruption at the time:

Rita Lavelle Reports Motive for Grant Delay

Published: April 8, 1985

Rita M. Lavelle, former assistant administrator of the Environmental Protection Agency’s toxic waste fund, says she now recalls being told that the agency delayed awarding a grant for political reasons.

Miss Lavelle, dismissed from her E.P.A. post two years ago, was interviewed last week in Washington, D.C.

Miss Lavelle said Anne McGill Burford, who headed the agency, wanted in mid-1982 to delay the cleanup grant for the Stringfellow toxic waste dump in Riverside County.

She added Mrs. Burford feared that Gov. Edmund G. Brown Jr. might get the credit if the cleanup plan were successful, and she did not want to help his bid for the Senate. Governor Brown was defeated.

Mrs. Burford, who resigned two years ago, testified at a Congressional hearing that she delayed the Stringfellow grant because she had some doubts whether it fully complied with E.P.A.’s regulations.

They say the fruit doesn’t fall far from the tree, and – to twist a phrase – that the sins of the mother are visited on the son.

I am the son of a brilliant woman who was active in public life and an ideological product of the Age of Sputnik – influenced by positive values of science, technological progress, and a strong role for government in promoting the public interest.

In contrast, Justice Gorsuch is the son of a disgraced ideologue and a product of the Neoliberal Age of the Powell Memo – see “The Powell Memo, A Call-to- Arms For Corporations”.

There is no need to speculate about conspiracy theories of Russian hacking – US democracy was hacked and hijacked by corporations 45 years ago, the conspiracy is hidden in plain sight, documented in a publicly available strategy memo, and Princeton research proves the success of it.

Reflecting that Powell strategy and anti-regulatory corporate ideology, Gorsuch has signaled a fundamental attack on federal regulatory powers: (see Judge Gorsuch’s concurrence at page 15).

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit 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. Maybe the time has come to face the behemoth.

[Update: 2/9/17 – the NY Times today focuses on that same administrative law issue and “elephant in the room” quote, adding a new coordinated Congressional attack

An issue that has become more contentious lately is how much deference a court should give to an interpretation of the law by an administrative agency when Congress gives it the authority to adopt rules. Known as “Chevron deference,” after the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, the current rule says the federal courts should defer to the agencies’ interpretations of statutes that are ambiguous or do not directly address an issue at hand.

In an opinion last August, Judge Gorsuch called into question whether Chevron deference was permissible under the Constitution. In a concurring opinion in Gutierrez-Brizuela v. Lynch, he pointed out that “there’s an elephant in the room with us today” that permits “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.” The downfall of Chevron deference would mean that “very little would change — except perhaps the most important things.”

Although this may seem to be an arcane issue of administrative law, Congress is already considering making such a change in how courts review agencies. The House of Representatives passed a bill on Jan. 11 that includes a provision, called the “Separation of Powers Restoration Act,” to overturn the Chevron decision and require federal courts to determine the proper interpretation of statutes without necessarily giving any weight to an agency’s views.~~~ end update]

[Update 3/17/17 – The NY Times echoes our emphasis on Gorsuch’s views on “Chevron deference”, suggests it will be the focal point of confirmation – see: “Should Agencies Decide Law?” – Once again, we are way out in front of the issue! ~~~ end update]

In that opinion, Judge Gorsuch also revealed a strong whiff of authoritarianism and executive power that is extremely dangerous in the Age of Trump. One could imagine a line like this coming from Steve Bannon:

To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee.

Gorsuch was influenced by “Public choice theory”, a theory that rejects the existence of the public interest and discredits government intervention. It has particularly undermined effective environmental regulation in the public interest :

The public choice theory of government decision making sometimes comes close to elevating this point into a universal law, suggesting that the general public interest can never prevail over powerful special interests. In the period of the late 1960s and early 1970s, however, Congress enacted numerous significant environmental laws, laws that continue to form the backbone of federal policies toward environmental problems. These laws were truly innovative in their policies and their designs, and they pitted the general public interest in improving environmental quality against powerful, special interests. In each case, the general public interest was able to prevail.

This policy “window” did not stay open for long. It was quickly succeeded by an extended period in which enacting additional innovative statutes has proven nearly impossible, which continues to this day. Yet we need innovative approaches to address continuing and emerging environmental problems more than ever. This is self-evidently true with respect to the problem of global warming and climate change. The questions worth asking are whether we can identify the factors that once made policy innovation possible in the late 1960s and early 1970s and if those factors can be produced once again.

Gorsuch’s legal education was shaped by the Federalist Society, an ideological legal institution created to implement the strategy set out in the Powell Memo and that strongly opposes regulation and promotes market based approaches.

[Update:March 18, 2017 – NY Times validates our Federalist Society linkage.  Gorsuch himself confirms it. But it is even worse – look who has ties:

Mr. Leo has an exalted reputation among conservatives, including Scott Pruitt, the former Oklahoma attorney general who is now head of the Environmental Protection Agency. Mr. Pruitt recalled in a speech last year at the conservative bastion Hillsdale College how he was in Washington for a Federalist Society meeting in 2013. Mr. Leo asked him to stay an extra night for dinner, without giving a hint of who might show up.

“Any time that Leonard asks you to go to dinner, you stay, because he feeds you well,” Mr. Pruitt said. But it was not only the menu that was impressive. Mr. Pruitt arrived to see Justices Scalia and Clarence Thomas at the table.

“We spent three hours talking about the Constitution and things that we were involved in as attorneys general,” Mr. Pruitt recalled. “It was a fabulous time.” ~~~. end update]

Trump has publicly stated that his judicial nominees will be “picked by the Federalist Society”:

Trump: All My Judges Will Be ‘Picked By The Federalist Society’

Trump’s chief strategist, Steve Bannon, comes from the bowels of Breitbart.

A lot of dots to connect and serious issues to think about here.

So let’s demand that the Senate do its job.

The first Gorsuch was too much. Let’s not repeat that experience for the next 25+ years on the Supreme Court.

[Update: I just read the NY Times analysis – predictably, it omits the Anne Gorsuch scandal – a rather large omission, given the history and my analysis above that connects the historical, psychological, legal and political dots –  merely saying Mrs. Gorsuch served as a “high official in the Reagan administration”.

But this reflects the key issues I flagged above:

Judge Gorsuch has not hesitated to take stands that critics say have a partisan edge. He has criticized liberals for turning to the courts rather than legislatures to achieve their policy goals, and has called for limiting the power of federal regulators.

Nan Aron, the president of the Alliance for Justice, a liberal group, said Judge Gorsuch’s stance on federal regulation was “extremely problematic” and “even more radical than Scalia.”

“Not requiring courts to defer to agency expertise when an act of Congress is ambiguous,” she said, “will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law.”

[Update #2 – In that same opinion, Judge Gorsuch not only signals an attack on federal regulatory power. His analysis would virtually repeal the New Deal Administrative state and harken back to the 19th century “non-delegation doctrine” the Supreme Court once invoked to block New Deal reforms.

Check out this argument – particularly in light of Trump’s stated intent to repeal and reverse Obama EPA regulations, doing exactly what Gorsuch condemns, i.e. EPA going “one way one day and reverse itself the next.” Would this not block Trump’s U-turns at EPA?

But even taking the forgiving intelligible principle test as a given, it’s no small question whether Chevron can clear it. For if an agency can enact a new rule of general applicability affecting huge swaths of the national economy one day and reverse itself the next (and that is exactly what Chevron permits, see 467 U.S. at 857-59), you might be forgiven for asking: where’s the “substantial guidance in that? And if an agency can interpret the scope of its statutory jurisdiction one way one day and reverse itself the next (and that is exactly what City of Arlington’s application of Chevron says it can), you might well wonder: where are the promised “clearly delineated boundaries” of agency authority?The Supreme Court once unanimously declared that a statute affording the executive the power to write an industrial code of competition for the poultry industry violated the separation of powers. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-42 (1935). And if that’s the case, you might ask how is it that Chevron — a rule that invests agencies with pretty unfettered power to regulate a lot more than chicken — can evade the chopping block.6

The Clinton administration and Clinton EPA took the legal position that greenhouse gas emissions were regulated “pollutants” under the Clean Air Act. The Bush/Whitman EPA reversed that legal opinion. The Supreme Court then essentially agreed with the Clinton opinion. The Obama EPA then implemented the Supreme Court’s direction. The Obama EPA vehicle fleet mileage rule and Clean Power Plan regulate GHG emissions.

Now, Trump and the Pruitt EPA is poised to reverse all that.

Surely, Gorsuch’s analysis above would block that. But we don’t need him on the Court to successfully litigate that issue.

[Update: 2/6/17 – read how a real writer – which I don’t even pretend to be – handles this material. Superb, must read:

Update: 2/5/17 – Wow – the NY Times reports a very similar story to my post below regarding Gorsuch’s mom, aided by a terrifying quote from young Mr. Gorsuch:

In Fall of Gorsuch’s Mother, a Painful Lesson in Politicking

WASHINGTON — Judge Neil M. Gorsuch’s first taste of rough-and-tumble Washington politics was bitter and lingering.

He was 15 years old and his mother was a high-ranking official in the Reagan administration caught in an ugly showdown with Congress. When she was forced to step down, her reputation in tatters, young Neil was furious.

“You should never have resigned,” he told his mother, Anne Gorsuch Burford, by her later account. “You didn’t do anything wrong. You only did what the president ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?”

This quote reveals Gorsuch as an authoritarian – in an Age of Trump, it should be disqualifying:

You only did what the president ordered.

[Update: Oh my! And I wrote of an authoritarian streak before I knew of Gorsuch’s work with the Bush Justice Department on extreme issues like torture, Guantanamo, spying, and executive power!

[Update: 5/8/19 – Trump’s own lawyer confirms my claims:

McGahn said a big part of his job as White House counsel was to deregulate and rein in the “administrative state.”

  • He said he did that by writing deregulatory executive orders and picking judicial nominees who wanted to limit the power of federal agencies.
  • He talked about Trump nominating judges who agree that the courts have given too much flexibility to federal agencies to interpret laws and enforce regulations.
  • McGahn said they looked for potential judges who wanted to reconsider the “Chevron deference,” which requires the courts to defer to federal agencies’ “reasonable” interpretations of ambiguous laws.
  • McGahn said Trump’s judges will spend 30–40 years unwinding the power of executive agencies.

[Update: July 7, 2022 –  The denouement: this is the best our most progressive activists can do, 5 years after the fact: too late David! No wonder we’re doomed:

~~~ end updates.

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