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Richard Epstein on OT 2005

In yesterday's Wall Street Journal (via Bainbridge):

The court's two wings share one trait: They defer only to the government officials they trust. Otherwise, they read a statute carefully to rein in the authority of officials they don't trust. The two factions don't differ in their philosophy of language, or in their on-again, off-again adherence to the rule of law. Rather, the court's liberal wing profoundly distrusts this president, but has great confidence in the domestic administrative agencies that regulate matters such as the environment. The conservative wing of the court flips over. It willingly defers to the president on national security issues while looking askance at expansionist tendencies of the administrative agencies. ...

Our Constitution starts out with a presumption of distrust of all government actors, which is why it drew a sharp line between the legislative and executive branches. We can argue until the cows come home whether national security or environmental protection presents the greater threat of executive or administrative misuse. But that ranking really doesn't matter, because there is no reason why the Supreme Court has to defer to overaggressive public officials in either context. Justice Stevens rightly chastised the president for flouting the rule of law in Hamdan. But he was tone deaf on the easier question of statutory construction when blessing the Corps' extravagant reading of the statute in Rapanos. We will get consistent and reliable statutory construction only when all justices put aside the na�ve fantasy that they lack expertise and information to read the common language found in congressional enactments.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.