A Republic, If You Can Keep It

by Neil Gorsuch

  2.

  OUR CONSTITUTION AND ITS SEPARATED POWERS

  How does this Constitution sound? In lengthy and exacting detail it provides every right you could possibly hope for. It promises the “inviolability of the person” and the “privacy of correspondence,” the rights to vote and run for office, and freedom of religion, “speech, the press, assembly demonstration and association.” It even guarantees the right to an education, free medical care, and “relaxation.” I’m not kidding. Sounds great, right? Maybe even a big improvement over our own comparatively stingy Constitution?

  Well, the Constitution I’m quoting from is North Korea’s. I could easily recite similar passages from the Constitution of most any communist country: They all sound about the same. But everyone knows that the promises found in these documents aren’t worth the paper they’re written on. What would someone dragged from his bed in the middle of the night at the behest of the latest “Dear Leader” think about the right to “inviolability of the person”?

  Our founders never knew the Kim family of North Korea, but they had plenty of experience with a tyrannical ruler. More than a few in the founding generation suffered at the hands of a capricious king, thrown in jail (or worse) without a fair trial. From their own experience and understanding of history, the framers knew that to prevent the rule of law from becoming the rule of men more is required than a Constitution full of nice promises. What’s needed is a Constitution that counteracts the instinct to seek and misuse power, one that secures individual rights not so much by their enumeration as by real structural limits on the power of government and those who run it.

  To this end, the framers divided the powers of the federal government into three branches. It was a radical innovation at the time, and it may be one of their most important contributions to human liberty. In Congress, the framers vested only certain enumerated “legislative Powers”—and to the framers that term had a distinct meaning. It meant the power to create new rules of general applicability with prospective application: a forward-looking function aimed at responding to new social and economic problems as they arise. To exercise that kind of power, the framers knew, required the collective wisdom of the people and their representatives. But the framers also understood that this awesome power could be used by majorities to invade the liberty of minority groups. So the framers divided the legislative power even further between a Senate and a House of Representatives. The result: Before Congress can impose new legal limits or obligations on the people, it must secure the concurrence of many different actors, answering to many different electorates, in many different elections. It is a process deliberately calculated to protect minority interests by effectively imposing a supermajority requirement for any new law.

  Meanwhile, to the president the framers assigned the distinct authority to “execute[]” the law. The deliberative pace appropriate to the legislative branch, the framers believed, holds less purchase once a law survives the legislative process. If a law can pass both houses of Congress (and receive presidential approval or survive a veto override), the framers thought it should be executed with “energy.” So the framers entrusted the executive power not to a committee, but to a single individual chosen by the nation as a whole. At the same time, the framers knew, separating the authority to write the law from the authority to execute it is essential to keep the executive branch from engaging in the sort of tyranny they experienced before the Revolution and that we see today in authoritarian regimes around the world.

  Finally, the framers assigned the federal “judicial Power” to a Supreme Court and other lower courts. If the legislative power involves deciding what the law should be for everyone in the future, the framers conceived the judicial power as the task of applying that law as it is to specific disputes over past events. To exercise that particular kind of power, another and still different kind of decisionmaker was needed: a neutral and impartial actor. To ensure what Hamilton called the “steady, upright, and impartial administration of the laws” to all persons regardless of their passing popularity, the founders guaranteed judges life tenure and salary protections. These protections make no sense, of course, for lawmakers in a republic where lawmaking is supposed to be responsive to the will of the people. But they are essential when the job description calls for the consistent application of the law even and especially for vulnerable and unpopular persons. And then, much as the framers divided Congress into two houses, they balanced the judiciary between independent and life-tenured judges responsible for deciding questions of law and juries drawn from the community responsible for deciding questions of fact; once more, power was checked and counterbalanced.

  The separation of powers and its role in protecting individual liberty and the rule of law can sound pretty abstract. I confess it seemed that way to me in my high school civics class. I came to appreciate the genius of the founders’ design more fully only years later, when as a judge I saw what happens to real people in real cases when the separation of powers goes unattended. Let me share with you a few of their stories, some of which you will see laid out more fully later. They’re just a sampling of so many that came across my desk as a judge on the court of appeals, but they illustrate in practical terms the vital role of the separation of powers.

  CARING HEARTS. Caring Hearts is a small business in Colorado that provides Medicare nursing services to the elderly. One year, the government performed an audit and concluded that Caring Hearts had improperly billed hundreds of thousands of dollars of services, so it slapped a fine of over $800,000 on the company. The trouble was, the government applied the wrong rules. Instead of applying the regulations in effect during the time Caring Hearts provided its services, it faulted the company for failing to abide more onerous rules that the agency adopted only years later. How did the government get its own rules so wrong? Every year, the executive agency administering Medicare has used the legislative authority delegated to it by Congress to issue a river of legally binding regulations and thousands more “subregulatory guidance documents” to explain those regulations. The agency had apparently written so many new legally binding rules that even it had lost track of all the changes.

  MIGUEL GAMES-PEREZ. A federal prosecutor charged Mr. Games-Perez with “knowingly violat[ing]” a statute that makes it a crime to be (1) a felon and (2) in possession of a firearm. But the prosecutor failed to produce any evidence that Mr. Games-Perez knew he was a felon. In fact, at the time of his earlier conviction, the judge expressly (but erroneously) told Mr. Games-Perez that if he agreed to plead guilty (as he eventually did), he would leave the courtroom “not convicted of a felony.” Still, rather than concede its inability to prove an essential element of the crime charged, the federal government invited judges to rewrite the law. The statute would be a better one, the government essentially told the Tenth Circuit, if it required the prosecution to prove only that Mr. Games-Perez knew he was in possession of a firearm. My court, relying on circuit precedent I thought mistaken, agreed. And so Mr. Games-Perez was sent to federal prison for violating a “statute” effectively written by judges rather than legislators, one neither Mr. Games-Perez nor anyone else could have found and taken notice of in the United States Code before the conduct leading to his “offense.”

  ALFONZO DE NIZ ROBLES. Mr. De Niz Robles is a Mexican citizen, married to a U.S. citizen, and the father of four U.S. citizens. Hoping to apply for lawful residency, he faced two competing federal statutory provisions that confused his path. The first seemed to suggest the government was free to adjust his status immediately and allow him to remain in this country. The second seemed to suggest he had to leave the country for at least a decade before applying for admission. In 2005, the Tenth Circuit held that the first statute trumped the second. Relying on that declaration of the law, Mr. De Niz Robles unsurprisingly decided to apply for an immediate adjustment of status. But then, years later, an administrative agency issued an edict purporting to �
��overrule” the Tenth Circuit’s precedent on which Mr. De Niz Robles had relied. The agency said Mr. De Niz Robles and immigrants like him must always satisfy the ten-year waiting period outside the country. So, in essence, an executive agency claimed the power to overrule a judicial decision and tell Mr. De Niz Robles that he’d have to start the decade-long waiting clock now, after an eight-year wait for the agency’s decision—even though if he’d known that was his only option at the beginning, his wait would’ve been nearly over.

  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.

  Just consider what happens when the judicial branch arrogates to itself the legislative function of deciding what the law should be. The people are excluded from the lawmaking process, replaced by a handful of unelected judges who are unresponsive to electoral will, unrepresentative of the country, and who come to the task armed only with four law clerks often barely out of law school. Their new “laws” apply not only prospectively to future conduct, but also retroactively to past actions that the affected parties can now do nothing to change. In this way, decisionmakers can see clearly the targets of their rulings and pick and punish them with impunity.

  Consider, too, what happens when the executive assumes the power to make new laws restricting liberty. A slow process that’s supposed to reflect and benefit from the views of the whole of the people is left to a single actor whose office is designed to be imbued with energy and vigor. Minority voices lose their impact, and lawmaking risks becoming so easy that no one can keep up. James Madison foresaw these problems when he warned that “[i]t will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.”

  Consider, finally, what happens when the elected branches assume the judicial function. Instead of a neutral judge and a jury of their peers, the people are left with politicized decisionmakers who will be tempted to pick winners and losers based less on the merits than on their current electoral popularity. And in a world like that, what can we expect to happen to the constitutional and statutory rights of minorities, to the unpopular and marginalized?

  However you mix what are supposed to be separated powers, the threats to the rule of law and liberty are much the same. At risk are the promise of knowable and stable law, fair notice, democratic self-rule, and equal protection under the law. Maybe a few will enjoy the riches needed to negotiate a world filled with endless lawmakers and endlessly changing law. These few might even be able to thrive in that environment, making the system work for themselves and against their rivals. Agencies, for example, can be captured by the powerful, and the regulated can become the regulators. But what about everyone else? In Federalist No. 62, James Madison warned that when the laws become too voluminous, incoherent, and malleable, they give “unreasonable advantage…to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people.” The laws risk becoming a tool “made for the FEW, not for the MANY.”

  To be sure, even when powers that are supposed to be separated wind up fused, “law” might remain in some formal sense; after all, people are still obliged to obey what someone says the law commands. But is that really the rule of law? History (and our world today) contain too many examples of government enjoying so much discretion under the “law” that it can prosecute more or less anyone it wishes more or less anytime it wishes. The rule of law demands more. And I think Friedrich Hayek identified one of the most important demands of the rule of law when he said that, “[s]tripped of all technicalities,” the rule of law “means that government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.”

  The founding generation did not have the luxury of overlooking the importance of the separation of powers, but I sometimes wonder if we are at risk of forgetting or discounting it today. After all, the value of the separation of powers isn’t always as obvious as the value of other sorts of constitutional protections. The Fourth Amendment’s guarantee against unreasonable police searches of your iPhone is concrete; everyone readily understands the connection to individual liberty. The value of the First Amendment’s right to speak your mind and its essential link to democratic self-government and individual freedom almost goes without saying. But it’s easy to find distinguished people today who will argue that the separation of powers is undesirable or unnecessary. In a modern society, they will argue, it’s not reasonable to expect the legislature to make the laws that govern us; legislation is too slow and cumbersome. Or, they say, juries and judges can’t be trusted to get the right answer or do so efficiently, so we should allow executive agencies to decide the people’s cases and controversies. And so on.

  This chapter is about the separation of powers, its role in protecting individual liberty, and the dangers that follow when we forget. When the separation of powers goes ignored, those who suffer first may be the unpopular and least among us—immigrants like Mr. De Niz Robles, small businesses like Caring Hearts, and criminal defendants like Mr. Games-Perez. But they are not likely to be the last.

  OF LIONS AND BEARS, JUDGES AND LEGISLATORS

  In this speech, I focus on the differences between legislators and judges and what happens when we muddle those roles—the dangers that follow when judges assert the right to make new laws and when legislators claim the power to decide past disputes between the people. When I was first asked to give this talk as the Sumner Canary Memorial Lecture at Case Western Reserve University, I had a different topic in mind—I planned to talk about some of the access to justice challenges that concern me and are discussed later in the book. But then Justice Scalia died and, knowing how much he cared about this aspect of our separation of powers, I decided to dedicate this speech as a tribute to him and his legacy.

  Sometimes people are described as lions of their profession and I have trouble understanding what exactly that means. Not so with Justice Scalia. He really was a lion of the law: docile in private life but a ferocious fighter when at work, with a roar that could echo for miles. Volumes will be rightly written about his contributions to American law, on the bench and off. Indeed, I have a hard time thinking of another justice who has written so many articles and books about the law even while serving on the Court. Writings like A Matter of Interpretation or Reading Law that are sure to influence generations of law students and lawyers.

  But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the
differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history—not to their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

  It seems to me that there can be little doubt about the success of this great project. We live in an age when the job of the federal judge is not so much to expound upon the common law as it is to interpret text—constitutional, statutory, regulatory, or contractual. And as Justice Kagan acknowledged in her Scalia Lecture at Harvard Law School in 2015, “we’re all textualists now.” Capturing the spirit of law school back when she and I attended, Justice Kagan went on to relate how professors and students often used to approach reading a statute with the question “[G]osh, what should this statute be[?]” rather than “[W]hat do the words in the statute say?” That much has changed and, as Justice Kagan said, “Justice Scalia had more to do with this [change] than anybody” because he “taught everyone to do statutory interpretation differently.”

  I don’t think there is any better illustration of Justice Kagan’s point than the very first opinion the Supreme Court issued after Justice Scalia’s passing. That case—Lockhart v. United States—involved the question of how best to interpret a statute imposing heightened penalties for three types of offenses—“[1] aggravated sexual abuse, [2] sexual abuse,” and “[3] abusive sexual conduct involving a minor or ward.” The majority opinion by Justice Sotomayor relied on the rule of the last antecedent and argued that the phrase at the end of the sentence—“involving a minor or ward”—modifies only the last offense listed. So the statute’s penalties apply whenever there is aggravated sexual abuse, or whenever there is sexual abuse, or whenever there is abusive sexual conduct involving a minor or ward. In dissent, Justice Kagan argued that the rule of the last antecedent sometimes gives way to “ordinary understanding[s] of how English works.” And in Justice Kagan’s estimation, an ordinary and average reader of the language here would think that the phrase “involving a minor or ward” modifies all three of its antecedents. So for the statutory penalties to apply, the government must always prove some kind of sexual abuse involving a minor. In support of her reading, Justice Kagan offered this gem: “Imagine a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie.’ You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.”