February 2, 2017
"to elevate the condition of men--to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance, in the race of life." --Abraham Lincoln
Chairman's Note: A Judge's Judge
Perhaps no other issue played a bigger role in the 2016 presidential election than filling the vacancy of Justice Antonin Scalia’s Supreme Court seat. “Millions of voters said this was the single most important issue to them when they voted for me for president,” President Trump said Tuesday night.
And President Trump then went on to make one of the best choices of his young administration. Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit is a tremendous pick for the Supreme Court.
First, Judge Gorsuch is unquestionably qualified. He graduated with honors from Harvard Law School and received a doctorate in Jurisprudence from Oxford. He clerked for three brilliant and well-respected jurists: Judge David Sentelle on the D.C. Circuit Court of Appeals, Justice Byron White, and Justice Anthony Kennedy. In 2005, he joined the Department of Justice as Principal Deputy Attorney General, and he became a judge on the Tenth Circuit in 2006 – thanks to a 100-0 confirmation vote by the Senate – where he has sat for the last decade. You could not ask for a better legal education or a stronger record of accomplishment.
Second, and most importantly, Judge Gorsuch has the correct approach to the law. He is a judge’s judge. He is the type of judge who believes that the law has right answers and that the law is not simply a tool to achieve political goals. He decides cases based on what the law says, not what he may want the law to say. As Judge Gorsuch observed in his remarks accepting President Trump’s nomination, “A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”
This is the central insight of the conservative legal movement that Justice Scalia helped shape. Judges do not have a roving commission to address the big policy questions we debate in Congress and the public square. The judge’s role is to apply the law to the facts of the case before it and, in the case of the Supreme Court, provide guidance to the lower courts so that they can resolve difficult and consequential legal questions. Judge Gorsuch understands the difference between the judge, the legislator, and the citizen, and that’s reflected in his work on the bench.
Third, Judge Gorsuch’s written opinions are simply brilliant. They are digestible to lawyers and non-lawyers alike—and this is crucial because the judiciary belongs to everyone in the country, not just attorneys. Two cases in particular stand out.
In 1984, when the Court decided Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., they did not know they were issuing what would become one of the most cited cases in Court history. Chevron held that courts must defer to an agency interpretation of a statute if the statute is ambiguous. The problem with Chevron, as Judge Gorsuch pointed out in his dissent in Gutierrez-Brizuela v. Lynch, is that Chevron divests the courts of their obligation to “say what the law is,” as former Chief Justice John Marshall wrote in the seminal case Marbury v. Madison. It has led to a system in which executive agencies not only make the law and enforce the law but also interpret it. This is an egregious violation of the separation of powers at the heart of our constitutional republic.
Another notable case, in which Gorsuch was the lone dissenter, involved an 11-year old student who was arrested for generating fake burps in class. Gorsuch concluded that clearly established law prevented the arrest and that the child’s parents should prevail in a lawsuit against the school officials who called the police. This common-sense reasoning is far too rare in our justice system these days.
This Supreme Court vacancy was a central issue in the 2016 election and the people have now spoken. I plan to honor the election results by working as hard as I can to ensure that the Senate confirms Neil Gorsuch to the Supreme Court, and I urge Americans of all political stripes to do the same.
Issue in Focus: Reining in the Regulatory State
The federal regulatory state is out of control and the American economy is suffering as a result. Every year, the flurry of rules and regulations emanating from the web of administrative agencies, departments, and bureaus cost the American people between $1 trillion and $2 trillion. Regulations not only inflate the price of goods and services, squeezing the household budgets of middle-class Americans, but they also drive up the cost of doing business, so that only the biggest firms and their armies of lawyers, accountants, and compliance officers can thrive.
But help is on the way. On Monday, January 30, President Trump signed an executive order, “Reducing Regulation and Controlling Regulatory Costs,” that will finally impose some commonsense discipline on the rule-writing agencies of the Executive Branch. The first part of the executive order proposes an elegant solution to a complicated problem. Call it the “one in, two out” rule: for every new regulation that an executive agency issues, at least two old regulations must be identified for elimination. Given that many decades-old laws are still spawning new regulations today, there will be no shortage of outdated rules that are ripe for repeal.
The second part of President Trump’s executive order creates an annual regulatory budgeting process that will require executive agencies to keep the compliance costs of their regulations below a predetermined limit. This is similar to a bill that I introduced last year as part of the Article I Project that would, for the first time, require Congress to vote on the total regulatory burden each federal agency may impose on the American people each year – a budget for federal regulatory costs to mirror Congress’s annual budget for taxes and spending. Whereas the president’s executive order puts the director of the Office of Management and Budget in charge of the regulatory budget, our bill, The Article I Regulatory Budget Act, makes Congress directly responsible for the size and scope of the regulatory state.
Executive agencies could still issue and enforce their rules, but only so long as their impact fits within the regulatory-cost limits established by Congress. This would give regulatory agencies – really for the first time – an incentive to make their regulations cost-effective. Regulators would be made to work for the American people instead of the other way around. And the American people, for their part, would be empowered to make informed judgments at the ballot box about economic regulations.
Ultimately, the only way to put the American people back in charge of Washington is to put the Legislative Branch back in charge of federal policymaking. But President Trump’s executive order is an important first step in this process, and one that I proudly support.
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Lee Praises President Trump’s Supreme Court Pick
WASHINGTON – Sen. Mike Lee (R-UT) gave the following statement Tuesday after President Trump nominated 10th Circuit Court of Appeals Judge Neil Gorsuch to replace Justice Anonin Scalia on the Supreme Court.
“Judge Gorsuch is a tremendous pick for the Supreme Court, and I look forward to doing everything I can to make sure he is confirmed by the Senate,” Lee said.
“I’ve had the privilege of arguing before Judge Gorsuch, and he is extremely impressive. He is a prepared, thoughtful, and careful jurist who has demonstrated a strong commitment to textualism and originalism. His opinions are well-reasoned and brilliantly written, and he has enriched the Tenth Circuit’s jurisprudence in a number of areas during his ten years on the court. He is a judge’s judge, who is well within the mainstream and always decides cases based on what the law says. He also always treats the parties appearing before him with dignity and respect.”
“Throughout 2016, I said the next President should pick the next Supreme Court justice. This vacancy was a central issue during the 2016 campaign, and the people have spoken by electing President Trump and returning a Republican Senate majority. I applaud the President for his excellent choice, and I look forward to enthusiastically working toward Judge Gorsuch’s confirmation.”
