and leaving the details to be worked out by “experts” in administrative agencies. They could pass laws that aspired to solving great problems without having to reach the compromises required to gain the necessary votes or being accountable for making the hard choices that governing demands.
All too often, the unelected experts charged with making those hard calls were not the non-political technocrats they were billed as but were pursuing a partisan end. Even an administrative state staffed by a mythical breed of pure-minded, disinterested bureaucrats would be subject to an almost irresistible tendency to metastasize. Regulation by agencies is relatively simple to promulgate—it merely takes the time and patience necessary to announce a rule, take comments, and show that the comments were in some way taken into consideration. Navigating bureaucratic procedure and red tape is easy compared with cobbling together a majority (or supermajority) of both houses of Congress and winning the president’s support. So with the growth of the administrative state, the volume and scope of federal law also grew. Issues that once were left to the states or the people were now literally made into federal cases.
As Congress’s ability to legislate has declined, the temptation to turn to simpler ways of governing has grown. Unable to work with Congress, President Obama famously turned to his “pen and phone,” that is, to executive orders and administrative agency action. Another alternative to dealing with a gridlocked Congress has been the courts, which themselves have abdicated some of their own authority.
In the 1980s, the Supreme Court began attempting to extract itself from an ever more complicated regulatory state by deferring to agencies when they interpreted statutes and, eventually, their own regulations. It may have saved the courts from making hard legal calls, but it put those decisions in the hands of the regulators—a heavy thumb on the scale for the bureaucrats whenever they were in a lawsuit. In the resulting system, in which all ties were decided in favor of government regulators, it was difficult for courts to be impartial interpreters of the law.
While abandoning some of their proper role, courts have also usurped the powers normally reserved to Congress. The legislative process is notoriously messy, and nobody thinks the sausage factory produces a perfect product every time. So when a judge is faced with a law that seems to function poorly, there is a temptation to step in. The legislators appear sloppy or foolish or, if it is an old law, blinded by the prejudices of their time. A nip here, a tuck there, and the law will function so much better. But the Constitution doesn’t establish the judiciary as the copy editors of the legislature. They are supposed to apply the law, not improve it.
There is a saying among lawyers that “hard cases make bad law.” It arises from the natural instinct of the judge or jury to bend the law to reach the result that their heart tells them is right. But in the bending, the law is deformed, and ever more pronounced departures from the original language follow.
Much of the temptation for courts to correct, rewrite, update, or amend statutes, and even the Constitution, arises from the perception that change through the proper channels is not feasible. Many legislators are content for the courts and the agencies to do their hard work for them. But some legislators also welcome judicial editing of the law to implement policies that do not have the broad support necessary to make it through the legislative process. When Senator Klobuchar questioned Judge Neil Gorsuch during his confirmation hearings about his ruling that the Religious Freedom Restoration Act (RFRA) covers corporations, he carefully explained the federal Dictionary Act, which defines “person” as it is used in federal legislation, and pointed out to the senator that if she thought the statute’s coverage of corporations was a bad idea, it was her job as a legislator to remedy that: “Senator, if in RFRA again, if this body wishes to say only natural persons enjoy RFRA rights, that is fine, and I will abide that direction. I am not here to make policy; I am here to follow it.”35
In fact, the Democrats did try to amend RFRA, but the effort went nowhere. To some, that is precisely the kind of situation in which the courts should intervene to implement the “correct” or “just” policy that politics failed to achieve. But however frustrated a minority of the Congress and the country may be with RFRA, those frustrated