Patterico's Pontifications

2/1/2017

Today in the Annals of Free Speech [Update]

Filed under: General — JVW @ 6:48 pm

[guest post by JVW]

Noted provocateur Milo Yiannopolous was scheduled to speak at 7:00 pm on the campus of — ta-da! — the University of California at Berkeley, but the appearance has been cancelled due to a large throng of leftists acting like leftists do in 2017:

The Breitbart News editor was set to deliver a speech inside a UC Berkeley campus building but hundreds of protesters began throwing fireworks and pulling down the metal barricades police set up to keep people from rushing into the building. Windows were smashed and fires were set outside the building as masked protesters stormed it.

The Berkeley Police Department said people threw bricks, smoking objects, and fireworks at police officers. Protesters took down a light pole and university police locked down all buildings and ordered a shelter in place.

Yiannopolous was invited by the local College Republicans to speak against college campuses declaring themselves “sanctuaries” for illegal immigrants. Under a great deal of pressure from leftist elements to prohibit the event, the Cal administration attempted to hold firm to free speech principles and proceed with the event. Apparently they were most unsuccessful.

UPDATE: Well, this is rich: apparently the Cal Office of Student Affairs was afraid that Yiannopolous’s speech would put illegal immigrant students at risk. I wonder what they think now that their police are dealing with firecrackers whizzing around their heads and bricks crashing down on their riot shields. Nothing like worrying about theoretical risk while ignoring real-world risk. Jeeze, academia.

[Cross-posted at the Jury Talks Back.]

– JVW

Rachel Maddow’s Opinion of Neil Gorsuch Just Might Surprise You

Filed under: General — Patterico @ 12:30 pm

Usually when I write a clickbait headline like that, it’s ironic. You know: you just might be surprised to learn that this radical leftist has a bunch of predictable pre-fabricated nonsense opinions!!! But no irony today. Maddow actually acknowledges that Judge Gorsuch is a “mainstream” pick:

The choice of Judge Gorsuch is a relatively mainstream choice that you might expect from any Republican president.

Wow.

Short clips like this taken out of context always concern me, so I sought out the entire show on YouTube. Maddow makes the comment at about 27:48, in the context of complaining about the treatment of Obama’s nominee Merrick Garland. There is no hidden “but Gorsuch is really awful!” comment in her quote that is excised by the clip above.

Earlier in the show, Maddow has lefty Dahlia Lithwick on, who says similar things:

This is not a bomb-thrower. . . This is an incredibly solid, respectable, conventional pick that anyone would have made.

Don’t let these comments worry you, by the way. The fact that Gorsuch is not a scary bomb-thrower, and that the left can’t lay a glove on him, does not mean he’s going to be weak. Remember: Justice Scalia was approved unanimously by the Senate. Non-controversial does not mean bad. Gorsuch is excellent and will be a fantastic Justice.

[Cross-posted at RedState and The Jury Talks Back.]

Neil Gorsuch’s Laudable Crusade Against the Administrative State

Filed under: General — Patterico @ 10:00 am

In my recent post on whom Donald Trump should select for the Supreme Court, I argued that Judge Neil Gorsuch was actually better than Justice Scalia on one key issue: his crusade against the overweening power of the administrative state:

Gorsuch also differs from Scalia for the better in his views on the Chevron doctrine: the principle that says courts will defer to executive agency interpretations of law when they are reasonable. For most of his career, Scalia tended to apply the Chevron docrtine with few questions, often showing a disturbing deference to executive agency interpretations of laws (though he seemed to hint at a slight change of heart in more recent cases). Gorsuch, by contrast, has been a fierce critic of Chevron — which is, in my opinion, a good thing, as the executive has too much power these days. Allowing the administrative state to serve as all three branches of government without genuine scrutiny from the courts is not what the Founding Fathers had in mind, and Gorsuch seems to understand this.

I want to elaborate on that today, because it may seem like a minor thing, but it’s not. It goes to the heart of the separation of powers.

There are many good books that discuss the dangers posed by the administrative state. One that stands out is Charles Murray’s By the People: Rebuilding Liberty Without Permission. Murray describes how absurd regulations, completely untethered from common sense, have become ubiquitous in the lives of American businessmen. Fighting these regulations is well-nigh impossible because the bureaucracy serves as lawmaker, enforcer, and even judge. Your challenge to a stupid regulation must first be adjudicated by an administrative law judge who is an arm of the same agency that wrote and enforced the ridiculous regulation. But to make matters worse, when you then go to court, judges apply something called the “Chevron doctrine,” in which they almost always defer to the agency’s decision, as long as it is “reasonable.”

Even Justice Scalia championed the Chevron doctrine for most of his career — though he was starting to get better. It’s a dangerous doctrine that makes judicial review toothless. It’s not what the Founders had in mind when they set up our system. And in a concurrence in a case called Gutierrez-Brizuela v. Lynch, Judge Gorsuch showed that he understood. Here are the opening paragraphs of his opinion:

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth. In enlightenment theory and hard won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers. In the avowedly political legislature, the framers endowed the people’s representatives with the authority to prescribe new rules of general applicability prospectively. In the executive, they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people. And in the judiciary, they charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes.

This allocation of different sorts of power to different sorts of decisionmakers was no accident. To adapt the law to changing circumstances, the founders thought, the collective wisdom of the people’s representatives is needed. To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee. And to resolve cases and controversies over past events calls for neutral decisionmakers who will apply the law as it is, not as they wish it to be.

Even more importantly, the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, 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 without advance notice. 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. Conversely, what would happen if politically unresponsive and lifetenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.

OK, if you’re not already standing on your chair and applauding, then go see a doctor, because you may not be feeling well. That is a stirring passage that tells me all I need to know about Judge Gorsuch’s priorities, his writing style, and his commitment to freedom and the rule of law.

He will be a great Supreme Court Justice.

[Cross-posted at RedState and The Jury Talks Back.]


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