The Supreme Court has become a center of electoral politics and was a strong consideration for many voters in the Midwest who switched for Trump. While voters are concerned about abortion rights and Second Amendment rights, the current court was more concerned about the power of the administrative state.

Judicial activism vs judicial restraint intersects with the concept of originalism which is less easily defined. Originalism requires understanding the words or the meaning of distant period of history; a difficult task when the framers of the constitution did not always agree on the context of a law. The meaning of ‘cruel and unusual punishment’ has certainly changed and few of us would require its original meaning in the enforcement of the eighth amendment.

But the concept of originalism obscures the need to respect the principles underlying the constitution and few developments betray those principles more than the power of the administrative state. Literal originalism and the opposite, laws written from the bench, should be equally unacceptable. In a complex society there will be a need for a regulatory state to clarify and enforce the law, but the regulatory or administrative state can also exceed its mandate. It is one thing for FDIC to supervise the banks to comply with the standards required for the insurance protection; it is quite another to create rules far beyond the intent of the legislators.

Dependence on the courts and the regulators allows sloppy and poorly considered law making. Rather than writing clear rules in the law the legislators can defer the precise rules to the appropriate agency. Rather than carefully consider the practical application of the law the legislators can pronounce high minded theory and require the agencies, unaccountable to the voters, to make the theory work by any means possible. Congress can also rely on the courts to clarify their legislation as SCOTUS did with the ACA and the consumer mandate.

Progressivism is largely defined by the latitude allowed to the administrative state and the recent court addressed it in two rulings. Kiser vs Wilkie ruled unanimously to uphold the Auer doctrine deferring to the agencies to interpret their own rules but within limits. The Chevron doctrine differs because it requires deference to the agencies in interpreting congressional law.

The more interesting case was Gundy vs United States. The Sex Offender Registration Act did not address retroactive cases and allowed the prevailing Attorney Generals to rule and their rulings varied. Kavanaugh’s hearing was still in process when the case was first heard so he could not participate in the decision leaving a potential 4-4 split.

Roberts stated that if the court had a majority to rule he would have voted with conservatives, but rather than split the vote which would have returned the case to the lower courts he ruled with the liberals of the courts in order to allow a dissenting opinion which came from Gorsuch. In doing so this paved the way for future challenges to the administrative state. By this unique strategy he allowed an opening for future challenges.

Court scholar Ilya Shapiro discussed this on Jonah Goldberg’s Remnant podcast episode 113. He also noted how often Kavanaugh and Gorsuch, both Trump appointees, had disagreed on the bench.

The court’s progress in restraining the power of the administrative state may become its most important contribution. Shapiro commented that it should be a nonpartisan issue. Why would the left want to defer to the judgment of agency heads like Betsy DeVos while they hold a majority in the House? Short sighted partisans should be cautious about bestowing power on any source unless you can imagine that power in the hands of your worst nightmare.

James Madison stated in Federalist #47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” In 1933 two laws were struck down on the non-delegation principle, the improper delegation of legislative authority to unelected regulatory agencies. The recent court has prepared to revisit that principle.