Review: Gorsuch rightfully critiques administrative state

By Harvey A. Silverglate and Darcelis Worrell

Supreme Court Associate Justice Neil Gorsuch has performed a valuable public service in laying out — and not for the first time — his philosophy toward and observations of the operations of our legal system.

Supreme Court justices are said to work in the proverbial “ivory tower,” high above the din and tumult in this vibrant, varied, sometimes chaotic and confusing society that we Americans have created. Gorsuch has looked down, and he has perceived a very serious problem.

The complexity and vagueness of our laws have reached a point where the average American struggles to discern what is and isn’t lawful. The proliferation of federal agencies with quasi-legislative and authoritative powers only exacerbates this problem.

Gorsuch highlights this by recounting the experiences of ordinary Americans ensnared in the convoluted legal system. He illustrates how federal agencies have enforced their authority unevenly and harshly, often over minor infractions of ambiguous statutes.

A fisherman criminally charged over how he counts his haul, a magician fined for an unlicensed rabbit, or a hair-braider sanctioned for lacking the latest license — these are the real-world examples Gorsuch uses to explore the consequences of overregulation.

Ultimately, no one should face imprisonment or financial ruin for trivial crimes imposed by unelected officials and faceless bureaucrats.

In line with his originalist interpretation of the Constitution, Gorsuch cites the ideals of Madison and the principles of federalism as the cornerstone of our legal system. He argues that our failure to adhere to federalism — balancing power between state and federal governments — has contributed to the degradation and bureaucratization of lawmaking today.

According to Madisonian principles, the creation of laws was intended to be a slow and deliberative process. The framers designed our Constitution with the liberties of ordinary people in mind, drawing from the English common law tradition inherited from pre-Revolutionary times. Common law, rooted in tradition and historical practice, did not require a parliament or legislature.

In other words, simplicity and the right to self-governance have been key to successful governance throughout human history.

System’s decline

Gorsuch argues that the health of our legal system has been in decline for decades, largely due to the rise and overreach of federal agencies — what he refers to as “the administrative state.”

Unelected bureaucrats, who are neither legislators nor judges, have been issuing thousands of regulations, violations of which can be deemed felonious and may result in imprisonment.

Beyond the issue of who creates these rules lies the challenge for Americans to know, understand and follow them, especially when they are subject to seemingly whimsical and unpredictable change, and with constantly changing penalties. This, Gorsuch contends, has been a catalyst for the over-prosecution and weaponization of law that has become all too common today.

One of the problems that has developed has been that of “plea bargaining.” Because prosecutors bring many more complaints and indictments than either their office staff or the judiciary can handle, a pernicious system has developed to cut down the number of trials.

Legislatures assign outlandishly harsh penalties to infractions of law, with a huge gap between the minimum and maximum. The prosecutor then tells the defense lawyer that if the defendant would plead guilty, saving the state or district the cost (in terms of dollars and manpower) and burdens of a jury trial, the prosecutor would recommend that the judge impose a vastly more lenient sentence.

This offer is capped with an assurance, that defense lawyers recognize as true, that the judge almost always follows the prosecutor’s recommendation. (For one thing, most judges were prosecutors before they ascended the bench. Very few defense lawyers get to wear black robes.)

The dangers of over-prosecution hit home especially hard in the story of Aaron Swartz. Aaron, a brilliant computer programmer and prominent “hacktivist,” was arrested on Jan. 6, 2011, by Massachusetts Institute of Technology police after he connected a computer to MIT’s network in an unlocked closet and systematically downloaded academic journal articles from the JSTOR database using a guest account.

Initially charged with state-level breaking and entering, federal prosecutors later charged him with multiple counts of wire fraud and violations of the Computer Fraud and Abuse Act. The charges carried a potential penalty of 35 years in prison and $1 million in fines.

Swartz rejected a plea bargain that would have resulted in six months in federal prison. Tragically, shortly after the prosecution rejected his counteroffer, Swartz, succumbing to the immense pressure, was found dead in his Brooklyn apartment, having taken his own life.

Silverglate recalls that after Swartz’s suicide, Swartz’s father contacted him, expressing regret that he couldn’t reach Silverglate to handle his son’s case. Due to Silverglate’s departure from his previous law firm, Swartz was represented by one of Silverglate’s former partners instead. Silverglate believes that, while he can’t say he would have won the case, he would have pursued a different strategy. He would have emphasized to the media and prosecutors that Swartz was a brilliant-but-eccentric young man who saw his actions as a prank, not a crime deserving severe punishment.

This practice, were it not engaged in by prosecutors and judges, would itself be the crime of extortion: defined as threatening dire consequences if the victim does not do as recommended by the powers that be. However, one reasonably asks, who will prosecute judges and prosecutors? The answer to this rhetorical question is self-evident.

Gorsuch’s challenge

In highlighting these systemic issues, Gorsuch challenges us to reconsider the direction in which our legal system is headed. The rise of the administrative state, the erosion of federalism, and the proliferation of plea bargaining have not only complicated the law but have compromised the rights and liberties of ordinary citizens.

However, while Gorsuch’s critique of the administrative state and the overreach of federal agencies is compelling, it is not without its challenges. Critics might argue that in an increasingly complex and interconnected world, the delegation of certain regulatory powers to specialized agencies is not only inevitable but necessary.

Modern issues like environmental protection, public health and artificial intelligence require expertise and swift responses that a slow, deliberative legislative process may not be able to provide.

The challenge, then, is not necessarily the existence of the administrative state, but rather finding a balance of power and responsibilities.

Harvey A. Silverglate is a criminal defense and civil liberties lawyer and writer practicing in Cambridge, Massachusetts. Darcelis Worrell is his research assistant.

This review was originally published in Rhode Island Lawyers Weekly.