Amy Coney Barrett Is A Defender Of Government By The People, Not By Bureaucrats

Amy Coney Barrett Is A Defender Of Government By The People, Not By Bureaucrats

A Supreme Court Justice Barrett will moderate the administrative state at both the judicial and executive level. Doing so will unify the nation.
Sean Ross Callaghan
By

Two buildings in Washington, D.C. are the District’s most prominent: the Capitol and the White House. They house the policymaking heads of the U.S. national government. They house the only District denizens personally described in the policymaking process by the U.S. Constitution: senators, congressmen, the speaker of the House of Representatives, the Senate president pro tempore, and the president and vice president. That’s it.

The Framers thought they’d all have to get along and compromise — quite like the Framers did when they agreed first to declare independence and fight a war, then on the innumerable decisions necessary to win it, then on the Articles of Confederation, and then on replacing the Articles with the Constitution. Compromise is the ineluctable providence and purpose of the U.S. government. It is as clear as the noonday sun that the Framers intended for it to function in no other way.

But not a lot of compromise happens in modern times among the constitutionally mandated personnel distributed at each end of Pennsylvania Avenue. Why?

Well, for one, residents moved in. Around the Capitol and the White House, moss grew and spread into adjacent Maryland and Virginia. It became the executive administrative state: The Internal Revenue Service; the Federal Communications Commission; the National Labor Relations Board; the Selective Service System; the Department of Education, and the list goes on. We might also include the Federal Reserve Board of Governors, even the Federal Bureau of Investigation, the National Security Agency, and the Central Intelligence Agency. This moss is all blue — and wealthy.

Congress and the White House might upset you, but they rarely trouble you. When the federal government troubles you, garnishes your wages for a tax bill worth more than your house, slows your favorite website, busts your union, sends you a piece of paper that means you’re going to rice paddies with a rifle, gets you expelled from college for what you thought was consensual sex, makes a new home or a new car too expensive for you, or throws you into prison for telling a lie you thought wasn’t — the fingerprints on your troubles are almost always mossy and blue.

Your name will never be uttered within the stately rooms of the Capitol or the White House. Whether a Democrat or a Republican, your fate will rest not on the Resolute Desk but a cubicle tabletop.

Why is the executive administrative state a Democratic Party state? It’s not perfectly clear why. But it’s perfectly clear that it is. Employment with the federal government is prestigious culturally and attractive financially for good students at top schools — particularly those students inculcated in the ideologies that predominate there but elsewhere are unpopular. Their view is that the federal government tackles interesting problems in smart ways with smart people for good pay, benefits, and hours.

Of course, that’s precisely the problem. The Framers read Plato but opted for a republic, not a state of philosopher-kings: a republic in which policy results not from unequal possession of intelligence but from all men’s equal possession of an inalienable inheritance from God. In 2016, the Code of Federal Regulations — the compendium of laws (yes, they’re laws, although they’re called “rules”) that the administrative state imposes but to which no Congress or president ever assent — had about 97,000 pages.

Unbelievably, sometimes those aren’t even the most important of extra-congressional laws. Sometimes “guidance documents” are. Like the “Dear Colleague” letter from the Obama-era Department of Education that coolly resolved a social debate about sexual mores into law for college freshmen without a single vote by a popular representative, they are often simply letters agencies write to tell people to do things.

Through the latticework of almost all of the guidance documents, pages of code, and open-ended statutes lie extraordinarily weighty questions of how to arrange life in America. The questions concern morality, economics, power, and privilege. They’re questions (almost) every modern federal politician would sprint over hot coals to avoid answering lest he offends a constituency.

So they’re left to the administrative state. Take in what the administrative state does and, most importantly, what it can do: how much bigger and more consequential its diktats can be under a motivated reign.

That’s why no one compromises in the District. A lot of important decisions are already being made by the executive administrative state, and there’s nothing on which to compromise.

So, too, are many important decisions being made by the judicial administrative state. This comprises the so-called activist judges. An activist judge will defend the policy impositions of bureaucrats from legal challenges and place policy into the Constitution himself, turning the Constitution into a political slave and turning policy into unrepealable law. There’s nothing on which to compromise after an activist judge rules.

A Justice Barrett will moderate the judges and bureaucrats on whom Democrats have too much relied for enduring policy wins, and that is why Democrats fear a Justice Barrett. A Justice Barrett will follow the Constitution — not rules imposed without our consent.

When Democrats and Republicans are faced with getting nothing or compromising, they’ll compromise. But so long as one side is faced instead with a choice of getting what it wants from the President and Congress or getting what it wants from judges or bureaucrats, there will be no compromise.

If you care about political comity and unity in America, you must seek compromise within the strictures of the Constitution. That document allocates the power to nominate and confirm a new justice to the president and the Senate: the former is sitting; the latter is in session. Confirm Judge Barrett now, not just because she can be but because she is the best justice for America.

Sean Ross Callaghan is an attorney and a former law clerk for a U.S. District Court judge. He served in the Treasury Department, the Justice Department, and in the DC Attorney General's office as an assistant attorney general. Follow him on Twitter @seanrcallaghan.

Copyright © 2020 The Federalist, a wholly independent division of FDRLST Media, All Rights Reserved.