Gorsuch Misled The Senate On His Radical “Chevron” Opinion – Shamelessly Deployed A “Charlie Brown” Analogy To Mask Corporate Interests
Gorsuch is a fundamental threat to the “New Deal Administrative State”
Gorsuch hides corporate deregulatory interests behind undocumented immigrants
“From the bottom of my heart”
Why can’t I free your doubtful mind
And melt your cold, cold heart. ~~~ Cold, Cold Heart (Nora Jones)
[Update below]
President Trump’s Supreme Court nominee Neil Gorsuch misled the Senate Judiciary Committee in a way that was as shameful as it was brazen. Let me explain, based on the transcript and an amazing exchange with Senator Feinstein.
I’ve previously written about how President Trump’s Supreme Court nominee Neil Gorsuch’s views on administrative law would threaten foundational principles of the entire edifice of what has been attacked by Trump strategist Steven Bannon as the post New Deal “administrative state”.
The effectiveness and enforceability of virtually all environmental and public health protection laws passed by Congress are impacted by this legal principle.
The legal issue revolves around how executive branch agencies adopt regulations to implement federal law passed by Congress and how courts review those regulations.
To condense a complex legal debate, Judge Gorsuch has questioned how courts should review executive branch agency regulations. He views the current legal doctrine as usurping Congressional legislative and judicial power.
Gorsuch wrote that the prevailing legal doctrine – known as “Chevron deference”:
permit(s) 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. (see Judge Gorsuch’s concurrence at page 15).
Gorsuch is fixated on “power” – he is not some neutral objective “umpire calling balls and strikes”.
There is a real possibility that a Gorsuch influenced Supreme Court could severely dismantle the New Deal and all environmental protections via placing restrictions on administrative regulatory agencies and making it easier for corporate interests to challenge and dismantle regulatory protections.
Make no mistake – Gorsuch’s views are radical and a serious threat to modern government.
If adopted by a conservative Supreme Court – threaten the foundations of the New Deal and all federal environmental and and public health protections.
Gorsuch faced a question from Senator Feinstein on his “Chevron deference” analysis written in his Gutierrez opinion on day 2 of the Senate Judiciary Committee’s confirmation hearing. Feinstein asked about “Chevron” following a line of questions of labor rights and whether Gorsuch would protect the “little guy”.
After Gorsuch insisted he’s a “fair judge” – he emphasized “from the bottom of my heart” – Feinstein asked: (watch and listen at time 1:01:20)
Let’s talk Chevron. That’s been used thousands of times….[Feinstein then discusses legislation establishing CAFE fuel standards and the need for experts to set regulatory standards]…. Here’s the point:… what we said in the legislation was that science would prevail…. What’s wrong with that? How else could we have done it?
Gorsuch replied:
I’m not aware of anything wrong with that Senator. I’ve never suggested otherwise.
That denial is false and misleading. So, Feinstein disagrees and responds:
But what you said is that Congress could not legislate by leaving some of the rules up to the scientists or other professionals in the departments.
Gorsuch then continues to mislead:
I appreciate the opportunity to correct this misunderstanding. The case I think you are referring to is Gutierrez. It involved an undocumented immigrant to this country. …. [Gorsuch outlines the facts of the case] … The Board of Immigration Appeals says, in their infinite wisdom, that our interpretation was wrong. Chevron. You have to undo your precedent that this man relied upon. And he now had to wait outside the country not just 10 years, but 13 or 14. It took them so long to make up their mind. Senator, that reminded me of, you know, when Charlie Brown is going in to kick the ball and Lucy picks it up at the last minute….. When an Executive bureaucracy can overturn a judicial precedent without an act of Congress. That’s what the case was about.
Where to begin with this bullshit?
Gorsuch shamelessly claims to have been concerned with a 3-4 year delay in allowing an immigrant to enter the country. But Gorsuch ignored and no one mentioned the actual text of his opinion, which is concerned about “power”.
Senator Feinstein, to her credit, immediately called him out for trying to suggest that he had “not suggested otherwise” with respect to her example of federal rule making that relies on Courts deferring to experts and scientists.
The Gorsuch reply was completely misleading and – by creating the apparance that the case was about protecting undocumented immigrants – and it was shameful. Right wingers do this all the time, i.e. they find sympathetic sounding plaintiffs (e.g. “Citizens United”, “Hobby Lobby”) to cover for corporate attacks on government protections.
Gorsuch made it appear that his opinion reflected an individual fact and case specific dispute and that it protected an undocumented immigrant from an arbitrary and repressive government agency. But in reality, Gorsuch wrote an attack on a broad and long standing presidential legal doctrine with widespread implications far beyond the scope of the individual immigration case before him. So much for judicial restraint. Gorsuch also violated his so called respect for and reliance on “precedent”.
The “Charlie Brown” analogy was totally misleading as well. A momespun homily to mask the exercise of raw power.
That is total bullshit.
Gorush wrote broadly – not about the facts of the case – and attacked a legal doctrine. He was engaging in judicial activism (right wing version) and went way beyond an individual case and controversy and the facts and law of that case. This is what he wrote: (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.
Gorsuch was really concerned about raw power – the “elephant” and the “behemoth” of federal regulatory agencies – not Charlie Brown or undocumented immigrant interests.
Corporate interests are seeking to use Gorscuh’s legal views to dismantle government regulation.
That’s why groups like the Federalist Society and the Heritage Foundation and the Koch Brothers recruited and support the Gorsuch nomination.
His views could strip federal regulatory agencies of powers to implement and enforce federal laws and lead to a dismantling of New Deal and environmental and public health protections.
He must be stopped, at all costs.
[Update: 5/8/19 – Trump’s own lawyer confirms everything I claimed below:
McGahn said a big part of his job as White House counsel was to deregulate and rein in the “administrative state.”
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He said he did that by writing deregulatory executive orders and picking judicial nominees who wanted to limit the power of federal agencies.
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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.
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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.
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McGahn said Trump’s judges will spend 30–40 years unwinding the power of executive agencies. ~~~ end update]