Justice Gorsuch's View of the Separation of Powers

Today, National Review published a review by Sherif Girgis of Justice Neil Gorsuch's book, A Republic, If You Can Keep It.  The review summarized the insights into Justice Gorsuch's view of the separation of powers provided in the book:

The chapter on separation of powers is the book’s most valuable contribution. Gorsuch does not simply recite the familiar but abstract slogan, committed to memory by all good legal conservatives, that dividing federal power protects liberty. He makes the point vivid with striking cases he has faced as a judge. The pattern is always the same: One branch arrogates to itself a power reserved to another. This enables it to escape the limits the other branch would have faced and exploit advantages and strengths the other branch would have lacked. And that produces just the kinds of abuse that the Framers’ careful calibration was meant to prevent.

For example, while Congress was designed to foster deliberation and broad consensus in the making of laws, the executive is equipped to act quickly and energetically in enforcing them. So when the efficient executive gets too much lawmaking power, regulations proliferate. To illustrate the potential harm, Gorsuch offers his judicial opinion about a small business that was fined nearly a million dollars for flouting regulations that weren’t in effect until years after the supposed violations had occurred. The agency imposing the fine had gotten itself mixed up, Gorsuch says, because it was unbound by the usual limits on lawmaking: It had produced so many binding regulations and guidance documents that the agency itself couldn’t keep track of them.

Gorsuch's separation-of-powers treatment is valuable not only for its striking illustrations but also for its attention to a side of the separation-of-powers triangle less visible to the public: the judicial-executive. Executive-branch agencies today do more than exercise quasi-legislative power by making regulations to enforce open-ended statutes; they also enforce their own regulations against private parties through in-house “trials” conducted by officials who work for the same agencies, do not have life tenure, and therefore lack the independence and neutrality of federal judges. Even when an agency’s reading of a regulation or statute is later challenged in court, judges will almost always defer to the agency’s view. Hence Gorsuch’s second concern about modern administrative law: that judges have abdicated their duty to interpret the law by bowing to agencies’ often shifting and questionable readings, thereby impairing people’s rights to a neutral arbiter and to fair notice of the laws that govern them.

Justice Gorsuch's opinions, concurrences, and dissents so far on the Supreme Court--just like his writings on the Tenth Circuit and elsewhere--demonstrate a strong commitment to protecting the separation of powers to ensure liberty and the strength of the republic.  Thank you, Justice Gorsuch, for respecting the system of government that the Framers designed in the Constitution.