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Justice Gorsuch Defies the Conservative Elite

The opinions expressed by columnists are their own and do not necessarily represent the views of

Last year, George Will – the Washington Post’s conservative intellectual in residence – reviewed Alvin S. Felzenberg’s book, “A Man and His Presidents: The Political Odyssey of William F. Buckley Jr.” The piece lauded both the book and the historical figure it covered.

Will said that Buckley, “infus[ed] conservatism with brio, bringing elegance in advocacy and altering the nation’s trajectory while having a grand time.” He contrasted Buckley against modern conservatism, which he found to be “soiled by scowling primitives whose irritable gestures lack mental ingredients.”

A basket of deplorables, in other words.

Will concluded that conservatism should make its way into public policy by the nimble arguments of its most deep thinkers. People like him is what he really meant. He finished his book review with a flourish:

“’[Buckley’s] true ideal,’ Felzenberg writes, ‘was governance by a new conservative elite in which he played a prominent role.’ And for which he would play the harpsichord.”

What Will did not say was that Buckley got his wish. There has been a conservative elite in Washington for going on 40 years.

Reagan campaigned for office on a platform to cut the size of government and won a 44-state landslide. Once in power, though, he did not significantly reduce the federal bureaucracy. It was the same behemoth as existed under Carter, except it was now led by smart republicans.

These best and brightest conservatives figured out creative ways to wield their newfound power. Anne M. Gorsuch was Reagan’s appointee to head the EPA. Environmental regulation at the time was a process where Congress would pass a who-could-argue-with-that sounding law like “The Clean Air Act” and leave it to the EPA to fill in the blanks.

Carter’s EPA filled in the blanks by placing onerous regulations on new manufacturing plants. Gorsuch’s EPA changed that, by adopting a different interpretation of the law that favored manufacturing.

An environmental protection group filed a lawsuit and the Reagan Justice Department defended Gorsuch’s bold act by successfully arguing in the case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), that when laws as drafted are ambiguous, courts must defer to a federal agency’s interpretation.

This came to be known as the Chevron Doctrine, paradoxically enacted at the behest of a president who had promised to diminish the influence of government. It ceded to administrative agencies legislative powers in cases where Congress did not directly address the precise question at issue.

The Chevron Doctrine vectored political power into the hands of unelected minions. Congress began to go out of its way to pass vague laws that didn’t really say anything, with a wink and a nod to their agents in the bureaucracy to implement the desired public policy.

This reached the pinnacle of ridiculousness with President Obama’s Affordable Care Act, which was 2,700 pages of triteness that delegated the big calls to the Secretary of Health and Human Services, Kathleen Sebelius. She was the one, and not Congress and the president, who decided that the Little Sisters of the Poor were required to buy condom insurance.

People quickly discerned that this was government by bureaucratic fiat, and not of, by, and for the people. The backlash that led to Trump’s rise was rooted in this sense that Washington was governing according to its own prerogatives without regard for what anyone wanted.

On August 23, 2016, perhaps sensing this shift in the Zeitgeist, a federal judge on the Tenth Circuit issued a concurrence that strongly criticized the Chevron Doctrine, stating: “Maybe the time has come to face the behemoth.”Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 (10thCir. 2016).

Cosmic symmetry being what it is, that judge’s name was Neil Gorsuch, the son of the Anne Gorsuch. When Trump became president, he appointed Neil Gorsuch to the Supreme Court.

Recently, Justice Gorsuch drew fire from the conservative elite for siding with liberal justices in the case Sessions v. Dimaya. Stripped to its fundamental principles, though, Gorsuch’s decision was maybe the most conservative thing a Supreme Court justice has ever done.

He defied the party that appointed him to strike down a purposely vague statute that left crucial decisions about deportation to Justice Department officials.

It was a shot across the bow to Washington. The Administrative State loses its power when people stop asking them “what did Congress mean by this?” If they are not the oracle of Congressional intent, they are just a bunch of functionaries, as it should be.

William F. Buckley did not live long enough to see the conservative elite fail to succeed in doing anything even remotely conservative and then use their residual stature to oppose first the candidacy and then the presidency of Donald Trump.

Likely, he would have been horrified at the spectacle.He certainly would not have played the harpsicord.

Justice Gorsuch took the first step in restoring Constitutional rectitude by telling the Attorney General if he wants to deport a class of immigrants, get Congress to pass a law that says so.

Take that Jeff Sessions, you Washington insider who doesn’t even know the difference between a basis for recusal and a political dirty trick. Anne M. Gorsuch created your species of middling conservative bureaucrat in a laboratory accident in 1984. Her son has arrived to fix his mother’s mistake.

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