When school kids routinely studied civics and government, we learned about the separation of powers, or checks and balances, which were part of the genius of our Constitution.
The concept of separation of powers has served us well and in the past prevented any one branch of government from becoming too powerful.
When Congress passes vague legislation and allows agencies to fill in the blanks and create new regulations at will, it cedes its law-making power to agencies. When these agencies, in effect, make and administer law, they become too powerful. There are real-life consequences.
The Justice highlights two examples:
The Justice writes about Caring Hearts, a Colorado business that provided services under Medicare. It was slapped with an $800,000 fine, allegedly for improper billing. Turned out that the government used the wrong rules were applied in imposing the fine. The agency has written so many new rules that it had “lost track” of which ones were in effect.
In the second example, a man was charged with “knowingly violating” a statute that bans a felon possessing a gun. The man, however, did not know he was a felon. He had been told in his previous case that if he pled guilty, he would not be a felon. The statute, whether a good or bad idea, was written by judges rather than lawmakers. This man was sent to prison for breaking a law that had not been passed by legislators.
In the third example, Alfonzo De Niz Robles, a Mexican married to a U.S. citizen and the father of two citizens, wanted to apply for citizenship. He was confronted with competing sets of standards as to how to do this that were in conflict. Agency-written regulations were in conflict with judicial opinions. Because of regulations written by an agency, which was not created to make law, Mr. De Niz Robles is still waiting, after eight years.
Justice Gorsuch writes:
At first, these stories might seem unrelated. They arise in different areas of law and implicate different questions of social policy. One is about Medicare and government contracts, the next about criminal law, the last about immigration. But despite their surface differences, over time I came to realize that cases like these reflect the same underlying problem: a mixing of what are supposed to be separated powers in ways that undermine the rule of law and diminish liberty.
In the first case, the legislature delegated its lawmaking powers to the executive — and the result was that lawmaking had become so easy and came so quickly that no one could keep up with all the new restrictions.
In the second case, the judiciary rewrote the legislature’s statutes to make “better” policy, even though it meant sending a man to prison for breaking a law nowhere in the books or approved by the people’s representatives. In the third case, the executive assumed the judicial power “to say what the law is” and left a family without fair notice of its demands on them.
It’s one thing to study the theory of the separation of powers. For me, it was another thing to witness how its disregard affects the lives of real people in real cases.
The title of Justice Gorsuch’s book comes from a quote from Benjamin Franklin. Leaving the Constitutional Convention, he was asked by a lady what kind of government the Convention had given the new country. He replied, “A republic, madam, if you can keep it.”
Ceding what is in effect law making authority to agencies has created an administrative state that is not exactly the republic the founders envisioned.