Civics: “good people trying to do the right thing, and not trying to hurt anybody, are just all of a sudden getting whacked.”
How did it come to this? “That is the question of the book, and I don’t have a complete answer for you,” Justice Gorsuch says. But it involves a shift “both up and across in our separation of powers.” By “up” he means a movement of responsibilities from states and localities to Washington. By “across” he means a flow of authority from Congress to the D.C. agency apparatus.
Take the latter problem first, since it might be more tractable, as well as easier to follow through history, leading to Woodrow Wilson. “Part of the intellectual patrimony of our current predicament really traces, I think, back to Wilson,” Justice Gorsuch says. “He thought that the tripartite system of government was antiquated.” Wilson signed a bill in 1914 that created the Federal Trade Commission, an independent agency whose members can’t be replaced at will—meaning controlled—by the president.
“The FTC was supposed to be experts,” Justice Gorsuch says. Instead, “it’s either aspiring or former politicians who often get those jobs.” President Calvin Coolidge named former Rep. William Humphrey to the FTC in 1925, and Herbert Hoover gave him another term in 1931. Two years later, Franklin D. Roosevelt sought to fire him. Justice Gorsuch channels FDR’s thinking: “He’s not one of my pols. If we’re going to have pols, I want mine.” The Supreme Court ruled against FDR’s view in Humphrey’s Executor v. U.S. (1935), upholding independent federal agencies.
Yet much of Justice Gorsuch’s lament has a later vintage: “Some people think this story is a New Deal story,” but “the number of federal crimes has probably doubled in my lifetime.” (He was born in 1967.) “Today the federal government funds about a third of all state activities,” he says. “That’s new again, in my lifetime.” The book quotes then-Gov. Ben Nelson of Nebraska, testifying before a U.S. Senate committee in 1995 about doing his first state budget: “I honestly wondered if I was actually elected governor or just branch manager of the state of Nebraska for the federal government.”
What has driven the change? “I’m no social scientist. I’m no psychologist. But I think it has something to do with trust,” Justice Gorsuch says. In the 1830s, Alexis de Tocqueville marveled at how Americans solved problems in their communities. “We trusted one another, and we worked with one another, and we debated and we talked with one another,” the justice says. If people no longer trust their neighbors, much less folks across the town or the state, where do they turn?
