Thread by @senatorshoshana

I'm reading @GorsuchBook in between work #obsessed. Thread starts here.

"And it struck me: It’s one thing to worry some judges might aggrandize their personal preferences over a faithful adherence to the law; but it’s another thing to think judges should behave like that."

@GorsuchBook amzn.to/2Lqur1t

"They never boast that they can foresee all the (often unintended) consequences of their decisions, let alone accurately calculate the optimal social policy outcome," Gorsuch says of judges he admires

YAS UNINTENDED CONSEQUENCES

@GorsuchBook "To succeed where so many others had failed, the framers understood that our republic needs citizens who know how their government works"

@GorsuchBook "without limits on the powers of government, the promises of individual rights contained in these provisions are just that: promises."

@GorsuchBook Like 5 pages in Gorsuch cites my FAV Madison quote UGH

@GorsuchBook "When it comes to the business of judging, our separation of powers makes clear that a judge’s task is not to pursue his own policy vision for the country, whether in the name of some political creed, social science theory, or any other consideration extrinsic to the law."

@GorsuchBook On his vision of originalism

"Now, sticking to the law’s original meaning doesn’t always make a judge popular or majorities happy."

BAE LOVES ANTIMAJORITARIANISM TOO YAS

Natural rights don't care about your majorities 💕

@GorsuchBook On civics and civility as necessary to keep the republic

@GorsuchBook OMGGGGG

"I am delighted to share space with Leroy because it happens that we share a few things in common: We are both native Coloradans. Neither of us will ever forget Justice Scalia."

@GorsuchBook my whole heart

"Originalism is simply the idea that when interpreting the Constitution, we should look to text and history and how the document was understood at the time of its ratification. For your constitutional rights should not be subject to judicial revision."

@GorsuchBook

@GorsuchBook "Without civility, the bonds of friendship in our communities dissolve, tolerance dissipates, and the pressure to impose order and uniformity through public and private coercion mounts."

@GorsuchBook "Our capacity for civility is, in this way, no less than a sign of our commitment to human equality and, in turn, democratic self-government."

@GorsuchBook The Constitution "even guarantees the right to an education, free medical care, and “relaxation.” I’m not kidding. Sounds great, right? Maybe even a big improvement over our own comparatively stingy Constitution? Well, the Constitution I’m quoting from is North Korea’s."

@GorsuchBook MY WHOLE HEART

"What’s needed is a Constitution that counteracts the instinct to seek and misuse power, one that secures individual rights not so much by their enumeration as by real structural limits on the power of government and those who run it."

GORSUCH ALLUDING TO 9A!!!!

@GorsuchBook “[i]t will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such..."

@GorsuchBook "And in a world like that, what can we expect to happen to the constitutional and statutory rights of minorities, to the unpopular and marginalized?"

@GorsuchBook HE HAS MY WHOLE HEART amzn.to/2Lqur1t

"Agencies, for example, can be captured by the powerful, and the regulated can become the regulators. But what about everyone else?"

@GorsuchBook "Judges must do more than merely consider it. They take an oath to uphold it. So any theory of judging in this country must at least be measured against that foundational duty."

@GorsuchBook "95 percent are resolved unanimously by the courts of appeals." cc @AnthonyWMarcum

@GorsuchBook @AnthonyWMarcum "The truth is that the traditional tools of legal analysis do a remarkable job of eliminating or reducing indeterminacy."

@GorsuchBook @AnthonyWMarcum "For some time now, agency-made law has far outpaced congressional output. Consider the (admittedly crude) data from 2016. According to Clyde Wayne Crews, federal departments, agencies, and commissions issued 3,853 rules, while Congress passed and POTUS signed 'just' 214 bills."

@GorsuchBook @AnthonyWMarcum HE HAS MY WHOLE HEART, citing @TheMikeChase @CrimeADay "if—heaven forbid—you sell ketchup that the fed govt considers too runny w/o labeling it as such, you may have committed the federal crime of selling misbranded food, punishable by up to a year in prison for each violation."

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay “we pour legislation into the senatorial saucer to cool it.”

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay "presidential elections tend to be about the big-picture questions—war and peace, not individual regulations"

THE BEST, also citing one of my favorites, @JonathanTurley

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley "legislators can then tell constituents that they have “solved” the “problem” by adopting legislation directing the agency to fix it—and at the same time they can blame the agency later if their constituents don’t like its chosen solution."

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley "So if we trust Congress to defend its legislative turf from the executive branch, we’re likely to be disappointed."

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley "So now, not only do executive agencies get to write the regulations, not only may they enforce them too, but they are even allowed to resolve any ambiguities that later emerge in favor of their preferred policy outcomes."

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley "Under our deference doctrines, it’s not enough anymore to look to the statute books and the decisions of courts interpreting them...Even then, you still have to predict accurately every reasonable possibility of what the law could be in the future."

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley "So when independent judges and juries give way to political decisionmakers in deciding cases and controversies over past facts, should we worry about the consequences for unpopular persons and causes?"

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley This chapter in @GorsuchBook on how administrative law works is FANTASTIC. Pretty plain language explanation of the system and its structural and in-action failings to safeguard justice.

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley In @GorsuchBook, the authors show their work. Too often, we regulatory nerds talk like nerds. Here, they make sure to say - yeah this is a thing even when [things that would make you see that thing differently]. EMINENTLY helpful

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley Rarely am I like - go to this government official, they can explain it best. But this REALLY is one of those times

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley "What would happen... if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and w/o advance notice."

@GorsuchBook @AnthonyWMarcum @TheMikeChase @CrimeADay @JonathanTurley [cont'd] "Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment—and raising along the way, too, grave due process (fair notice)..."

"...and equal protection problems."

MY WHOLE HEART

hi this is my love language

"Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty."

"Some thoughtful judges and scholars have questioned whether standards like these serve as much as a protection against the delegation of legislative authority as a license for it"

"Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law."

"titanic administrative state"

THIS!!!!! "The Supreme Court has expressly instructed us not to apply Chevron deference when an agency seeks to interpret a criminal statute. Why? Because, we are seemingly told, doing so would violate the Constitution by forcing the judiciary to abdicate the job of saying...

... what the law is and preventing courts from exercising independent judgment in the interpretation of statutes."

"And try as I might, I have a hard time identifying a principled reason why the same rationale doesn’t also apply to statutes with purely civil application."

"So what would happen in a world without Chevron? If this goliath of modern administrative law were to fall? ...The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is."

MY GOSH every paragraph of this book is worth its own paper. I work on regulatory reform but I'm learning so much, and this book is brilliantly and effectively dense but in plain English

buy dis book amzn.to/2Lqur1t

"CMS ordered Caring Hearts to repay the government over $800,000"

BUT "it applied considerably more onerous regulations the agency adopted only years later. Regulations that Caring Hearts couldn’t have known about at the time"

This book is SO ILLUSTRATIVE of how and why weakening the separation of powers perverts justice both intentionally and accidentally