Lessons from Gorsuch’s Over Ruled: The Human Toll of Too Much Law.
Jason Cao
Staff Writer, The Buckley Beacon
Postal routes, while seemingly trivial, were a key point of contention for the United States Congress in late 1791. Seeing that postal routes facilitated communication in the early republic, the question of who could organize them became particularly salient.
As Supreme Court Associate Justice Neil Gorsuch recounts in Over Ruled: The Human Toll of Too Much Law, then-Massachusetts congressman Theodore Sedgwick floated the following proposal: allowing the President to establish the specific routes to be funded by congress. Since the need for different postal routes is a highly technical matter unfamiliar to most congressmen, it seemed logical that the specifics would be delegated to the executive branch.
Sedgwick’s colleague, James Madison—the Federalist hotshot turned power-skeptical Virginia congressman—disagreed vehemently. He led a group of congressmen who vociferously opposed the idea, arguing that outsourcing debates over federal funding to the executive branch would infringe upon powers that were constitutionally delegated to congress.
Eventually, Madison and his allies succeeded, and the congress approved a long list of postal routes in its Postal Act of 1792.
While an intriguing snippet of our nation’s history, the Sedgwick-Madison debate seems not only antiquated, but farcical today. As Justice Gorsuch emphasizes, the rise of the administrative state over the past century means that most of the specific regulations that direct our lives are created not by democratically elected legislatures, but by bureaucrats in various federal departments and agencies. In his perspective, this is antithetical to our democratic republic.
In Over Ruled, Gorsuch, alongside his former law clerk Janie Nitze, explains systematically how the centralization of power in the federal government, the rise of administrative bureaucracies, and the proliferation of laws and regulations harm the democratic rights, civil liberties, and welfare of individual Americans. Through a series of stories about how Americans have run afoul of the legal and regulatory labyrinth, Gorsuch reminds us of the dire need to live by the values of our Founders.
Federalism, Not Centralization
Where should power be allocated? Gorsuch brings us first to this fundamental question central to our founding debates. The framers, as we traditionally understand them, sought to balance power between the federal and state governments—knowing that a strong central government, while perhaps necessary for security and stability, tends to infringe upon its citizens’ rights. They embraced federalism, granting the federal government limited and enumerated powers while reserving the rest for state and local institutions.
Gorsuch clearly supports our rich history of federalism, summarizing its advantages into four points: one, federalism diffuses power and protects individual freedom; two, federalism supports differing ways of life in a diverse nation; three, federalism allows local institutions to solve local problems; and four, federalism creates laboratories where innovative policies can be tried and tested before being implemented across the country.
From Gorsuch’s perspective, the concentration of power in the federal government over the past century erodes all four key advantages of federalism.
The actions of the Environmental Protection Agency (EPA) in Butte, Montana, is Gorsuch’s best example. Per Gorsuch’s retelling, Butte was a copper mining town, and its long legacy of mining left it with immense environmental issues. Large concentrations of arsenic could be found in the backyards of landowners, causing many residents to contract cancer. Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), otherwise known as the “Superfund” law, the EPA began its cleanup operations, but their low standards were wholly inadequate to address the situation. Subsequently, many residents of the town sued the mining company and presented their own plan of remediation.
Much to their surprise, the federal government and the mining company argued that CERCLA prohibited landowners from pursuing their own “remedial action” without EPA approval. Despite Gorsuch’s dissent, the Supreme Court endorsed this reading in a 7-2 decision in Atlantic Richfield Co. vs. Christian (2020). As a result of the increasing concentration of power in the federal government, Gorsuch argues, the residents of Butte were left without a recourse to address the pollution that deleteriously affected their quality of life.
Through the example of Butte, Gorsuch explains that the rising control Washington, D.C., has over the states and the localities works against individual freedom, diversity, and the innovative spirit.
Legislatures Over Administrative Agencies
Modern administrative agencies combine legislative, executive, and judicial functions, often having power to write, enforce, and adjudicate regulations. How did this shift take place?
Gorsuch brings us back to President Woodrow Wilson, the father of public administration. To Wilson, the highest virtue of government wasn’t democracy, but efficiency, and he saw the American democratic process as horribly inefficient. Instead, he sought to emulate the Prussian bureaucracy, consisting of experts unaccountable to the public, which he thought was far more effective. During the Progressive Era and particularly Wilson’s presidency, his ideas gained traction in government, creating the foundations for the modern administrative state we see today.
One precedent that Gorsuch highlights as particularly destructive is Humphrey’s Executor v. United States (1935), a New Deal-era case allowing Congress to create “quasi-legislative” and “quasi-judicial” agencies like the Federal Trade Commission (FTC) headed by bureaucrats who the president couldn’t easily remove. Armed by this ruling, legislators created an ever-increasing number of bureaus and agencies in the federal government unaccountable to democratic elections.
In a practical sense, the proliferation of agencies and regulations has led to inefficient public administration, precisely the opposite of what Wilson envisioned. More importantly, from a principled perspective, the administrative state is antithetical to our founding values of democratic self-government, rule of law, and respect for the individual. As Gorsuch concludes, the administrative state violates “our conviction that the individual’s inalienable rights may not be bargained away.”
Simple Laws Over Legal Labyrinths
Laws are supposed to be simple and commonly understood. A Heritage Foundation report in 2008, however, showed that Congress adds 56 federal crimes every year on average, many of which govern increasingly trivial aspects of our lives. For example, depending on the state you live in, individuals can be arrested for making caskets without a license or sharing food with the homeless.
More importantly, many criminal laws today have discarded traditional mens rea requirements, which append to the prosecution’s burden of proof the requirement that they prove criminal intent on the part of a defendant. By imposing new crimes without this requirement, the government creates situations where individuals could, without knowing, run afoul of the law and be imprisoned for their actions.
The rise of plea bargaining, a negotiated settlement in criminal cases where the defendant agrees to enter a guilty plea in exchange for a lesser sentence, threatens the foundation of individual liberty in our nation—trial by jury. When prosecutors actively encourage the defendants to plead guilty, they circumvent the traditional process of ascertaining guilt or innocence. Based on data from the United States Sentencing Commission and the Bureau of Justice Statistics, Gorsuch estimates that 97 percent of federal felony convictions and 94 percent of state felony convictions in recent years come through plea bargains. While guilty pleas are more efficient, justice is the goal of the criminal justice system, not efficiency. Plea bargaining undercuts what the framers believed to be the most important guarantor of liberty: the right to trial by jury.
Where Do We Go From Here?
One year ago, the Supreme Court overturned the doctrine of Chevron deference in Loper Bright Enterprises v. Raimondo (2024). Chevron previously held that courts should defer to the agency’s interpretation of a statute, so the decision shows the Court’s willingness to curb the influence of the administrative state. This December, the Supreme Court will hear Trump v. Slaughter, a case directly challenging Humphrey’s Executor and the power of unelected leaders of administrative agencies. These cases have the potential to steer legislative power back from the hands of the career bureaucrats to the elected representatives.
The movement to reassert federalism, however, is a longer journey. Gorsuch has pinpointed the Progressive Era and the New Deal as the culprits that began the century-long erosion of our federalist system. It might take a similarly long time to move the country back towards the principles of limited government.
In Over Ruled, Gorsuch is conveying a powerful message to Americans—look to the Founding. Our founding fathers, while holding amongst themselves a plethora of disagreements on core political philosophy, shared a commitment to certain foundational values—individual freedom and representative government among them.
Our legal system today has deviated from these ideals of the American experiment. It is time for us to return to those principles.
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Gorsuch, Neil M., and Nitze, Jane E. Over Ruled: The Human Toll of Too Much Law. (New York: HarperCollins, 2024).