New book by Supreme Court Justice Gorsuch delves into massive power of federal bureaucracy
Editor’s note: This essay is adapted from "Over Ruled: The Human Toll of Too Much Law," by Neil Gorsuch and Janie Nitze.
In his 2011 State of the Union address, President Barack Obama spoke of the growth of federal administrative agencies in recent years — and by implication the difficulty any president faces in trying to oversee it all. The president observed that we now have 12 different agencies that deal with exports and at least five responsible for housing policy. He added, "The Interior Department is in charge of salmon while they’re in fresh water, but the Commerce Department handles them when they’re in saltwater. I hear it gets even more complicated once they’re smoked."
Thinking the president had exaggerated, fact-checkers busily got to work. In the end, they rated his statement "mostly true" — but only because it "unders[old] the complexity."
Obama’s speech got big laughs. And at one level it is funny. But for ordinary people trying to navigate a federal bureaucracy — one that holds immense and often largely unreviewable power over important parts of their lives — the joke conveys a bitter truth.
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The director of the Immigrants’ Rights Clinic at the University of Chicago Law School, for example, told this story to The Hill about the steps she had to go through just to get an appointment for her client to be fingerprinted in connection with an asylum order.
Associate Justice Neil Gorsuch stands during a group photo at the Supreme Court in Washington, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool, File)
She started by filing a fingerprinting request with U.S. Citizenship and Immigration Services. After a month passed without a reply, she sent another request. Still nothing. So she called the agency hotline. They told her to call the agency’s local office in Chicago. When she did, that office said it had no power to schedule the appointment and directed her to the national processing center. When she reached out to that center, a representative referred her back to the agency hotline.
Here’s what happened next:
When I called the hotline again, I was told that no one was responsible for booking the appointments at the present time and that I should call back in six weeks to see if new guidance had been issued. I asked to speak with a supervisor. I was told that a supervisor would call me back in the next 42 days and that I should keep my phone with me at all times. If I missed the call, I would have to start the process again.
When the supervisor called weeks later, he said that I needed to contact my client’s deportation officer. I called the deportation officer, and he said he wasn’t responsible for making the appointments, either. When I begged for his help, he finally said that he would do me a favor — and he set up the appointment in less than five minutes. He ended the call with: "You know, any of those people you talked to could have set up the appointment."
"Over Ruled," by Neil Gorsuch and Janie Nitze, looks at the impact of the powerful federal bureaucracy.
The lawyer concluded, "A system in which it takes four months to schedule an appointment isn’t just broken. It is barely a system at all." David Graeber, describing his own bureaucratic odyssey, put it this way: "They set demands they insist are reasonable, and then, on discovering that they are not reasonable conclude that the problem is not with the demands themselves but with the individual inadequacy of each particular human being who fails to live up to them."
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The academic and author Edwin J. Feulner, Jr., once argued that Hayek’s "greatest contribution lay in the discovery of a simple yet profound truth: man does not and cannot know everything, and when he acts as if he does, disaster follows."
We wouldn’t call our current state of affairs a disaster — though Mr. George and Mr. Patel might disagree. But maybe our society’s increasing deference to claims of bureaucratic expertise threatens something even more vital than our promise of democratic self-government or rule-of-law values: our nation’s respect for the individual — for the dignity that exists within each of us, whatever our quirks, warts, and failings — and our conviction that the individual’s inalienable rights may not be bargained away, even in the name of efficient public administration.
Many years ago, a wise judge, Learned Hand, said that he would find it "most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."
It’s a reflection that poses this question: What happens when we forget what that stimulus feels like; when we lose our appetite for participation in public life; when we become so accustomed to taking directions from a "bevy" of experts that we cannot imagine doing things any other way?
For her part, Hannah Arendt answered that question with a warning, one about a world in which "there is nobody left with whom one can argue, to whom one can present grievances, on whom the pressures of power can be exerted. ... [T]he rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant."
Janie Nitze served as a Senate-confirmed board member of the Privacy and Civil Liberties Oversight Board. Previously, she was a fellow at Harvard Law School and an attorney with the Office of Legal Counsel in the Department of Justice. She has clerked for Justices Sonia Sotomayor and Neil Gorsuch of the U.S. Supreme Court.
Neil M. Gorsuch is an associate justice of the Supreme Court of the United States. A Colorado native, he served as a judge on the U.S. Court of Appeals for the Tenth Circuit, which is based in Colorado and hears appeals from six western states, before his appointment to the Supreme Court in April 2017.
