Monday, April 3, 2017
Judge Gorsuch and the Dissolution of the Administrative State
The New York Sun ran an editorial today about a New York Times article by two children of left-wing judges. They claim that the appointment of Judge Gorsuch will threaten the administrative state. The reason is that Judge Gorsuch opposes a decision called (467 U.S. 837, 1984), and Judge Gorsuch's appointment may lead to its reversal. The decision enunciated the Chevron principle, by which the Supreme Court held that when decisions are unclear the courts should defer to administrative agencies.
Repeal of such deference would be a great thing, and if we start a tabulation of costs versus benefits of the Trump administration, curtailing or ending the Chevron principle would add to the benefits side of the ledger.
I go further. The Chevron principle is a good argument for the inability of the courts to determine Constitutionality. That claim was made in the early 19th century, but it was violated by Abraham Lincoln and denied by Andrew Jackson.
The Lincoln and Johnson administrations were unwilling to adjudicate the issue of secession. Rather than sue the first seven states that seceded, Lincoln chose to raise an army and illegally threaten them with military power. The issue of secession was never adjudicated, which is why the North did not punish the leaders of the Confederate States of America for treason. If secession had been adjudicated early on, Chief Justice Taney's Supreme Court may have ruled on the side of the South. The Civil War may have been averted. At one point Lincoln issued an arrest warrant for Chief Justice Taney, but it was never carried out.
The Chevron doctrine exhibits an authoritarian bias that reminds me of of Friedrich Hayek's warning, in The Road to Serfdom, that the bureaucratic state is inherently dictatorial. By renouncing its own authority in favor of bureaucrats, the Supreme Court has ceded American governance to dictatorship by appointed agency.
The bungling incompetence of the appointed dictatorship that the Times has supported since the 1930s needs little clarification. From 1830 to 1970 the average American saw wage gains of .5% to 2.0% per year. Since the expansion of the administrative state under Johnson and Nixon, and especially the abolition of the gold standard in 1971 and the expansion of the powers of the Federal Reserve Bank, economic improvement for the average American has been nil.
If wage gains had continued at 1.5% per years from 1971 to 2015, the average American would be earning roughly twice what he is earning now. The administrative state is responsible for the halving of Americans' wages.