When a nominee for the federal bench testifies before the Senate, he or she is evaluated based on such things as “judicial temperament” and “fitness.” The term “judicial temperament” has no certain meaning and, so, each Senator approaches the evaluation with a different set of factors in mind. To restore liberty to the heart of the Constitution, United States Senators must demand that nominees have a judicial temperament that favors restoration of the non-delegation and separation of powers doctrines to the Constitution. Exiled since the 1930s, those doctrines must be resuscitated if we are to have any hope of restraining and culling back the abuses of the regulatory state. Liberty depends on judges who view with skepticism and are willing to strike down regulations that exceed statutory and constitutional law.
A judge on the federal bench will be asked to resolve, among other issues, whether regulatory agencies have exceeded their authority, have violated civil liberties, or have acted in a manner contrary to the plain or intended meaning of statutory or constitutional law. The power of a federal judge is extraordinary. Federal judges can condone or invalidate regulations that have the effect of causing widespread unemployment, of dramatically increasing the cost of doing business, of creating state-sponsored monopolies, or of causing the death of one or even hundreds of people.
For me, there is no more important character trait for a federal judge than a solid predisposition against assumption and use of federal power beyond the limits of statute and the Constitution. I look for a pronounced antipathy for power and for a solemn regard for the sovereignty and liberty of the individual. A good federal judge is a guardian of the Constitution who views power with suspicion and consistently defends the philosophical underpinnings of the Constitution’s provisions to keep the Founding Fathers’ meaning alive.
Under existing precedent, when a statute is ambiguous, the federal courts defer to agency interpretation in most instances. That has condoned the greatest delegation of power from Congress to the agencies in history, making the United States a bureaucratic oligarchy rather than the federal republic intended by the Founding Fathers. There is an alternative federal judges may take to that approach, an alternative that arises from a predisposition against federal power. That is to rule agency actions unlawful if they are not based on an express grant of statutory authority (which, in turn, is predicated on a power granted by the Constitution to the government) and violate the plain and intended meaning of the statute.
A judge who compels administrative agencies to identify and rely on express grants of statutory authority for action seems to me to be the kind of judge whose judicial temperament comports well with the Constitution. A judge who prefers broad deference to administrative agencies is a threat to restoration of the non-delegation and separation of powers doctrines that the Founding Fathers deemed essential to preservation of liberty.
Since President Roosevelt’s court packing plan and the so-called “switch in time that saved nine” (when the Supreme Court sent into exile the doctrines of non-delegation and separation of powers), the federal courts have condoned a massive movement of governing power from the repositories created by the Constitution (the legislative, executive, and judicial branches) to independent regulatory commissions whose heads are unelected and unaccountable to the courts, the Congress, and the American people. That century long movement must come to an end, and it must be reversed, if we are to restore liberty to the heart of the Constitution where the Founding Fathers placed it.
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When assessing the temperament of a federal judge, United States Senators should be diagnosing whether the nominee understands the Founding Fathers’ commands concerning non-delegation and separation of powers, intends to effectuate them by restoring the non-delegation and separation of powers doctrines, holds protection of individual liberty against government oppression the very purpose of the Constitution, and believes fundamentally that limits on federal power are essential to restoration of the republic the Founding Fathers created.
© 2010 Jonathan W. Emord - All Rights Reserved