This column by ACRU General Counsel Ken Klukowski was published November 24, 2017 by Breitbart.
America may soon have a judiciary, Congress, and administration that are more aligned with constitutional principles than they have been in decades, allowing government officials, legal scholars, and lawyers to plan ahead for government under a reinvigorated Constitution.
The United States has not had unified conservative government since the 1920s. In 1929, moderate Republican Herbert Hoover became president, the stock market crashed mere months later, and Hoover’s moderate policies shoved the heavily leveraged American economy further underwater and held it there, inaugurating the Great Depression.
Democrats seized both chambers of Congress, and liberal Democrat Franklin Delano Roosevelt came to power after the 1932 election. The Supreme Court started a leftward swing in 1934, which was the last year that America had a Court majority that consistently interpreted the Constitution according to its original public meaning.
A unified Democratic government passed sweeping legislation and created vast new federal agencies with unprecedented power over the lives of American citizens and businesses. Congress also delegated vast legislative powers to executive agencies in a manner that lawyers have a difficult time squaring with the Constitution’s separation of powers.
The Supreme Court marched leftward each year during this time, abandoning the original meaning of the Constitution’s Contracts Clause in 1934, the Tax Clause in 1936, the Spending Clause and the Commerce Clause (the “big ones”) in 1937, along with deviating from the Tenth Amendment during those years.
Throughout the subsequent eight decades, America vacillated between moderate and liberal governments, but never conservative. The only conservative chief executive during those years, President Ronald Reagan, was saddled with Democratic control of the U.S. House of Representatives during all eight years of his presidency, and so never had the votes to pass fundamental-change legislation that he advocated as a candidate. And while President Reagan appointed some acclaimed originalists to the judiciary during his tenure, a conservative bench proved to be too large of a task for a single presidency.
There has never been a working conservative majority among the elected branches of the federal government to roll back this massive expansion of federal power since its inception, and 80 years of legislation and administrative actions that departed from the Constitution have never been reviewed by a conservative Supreme Court.
During these many years, most of the fights over liberty have been about the meaning and scope of enumerated rights in the Constitution, such as free speech, religious liberty, and the Second Amendment, rather than the enumerated powers in the Constitution, the specific authorities that government properly wields, and the limits to those powers.
Now a revolution in America’s form of government is underway. The jury is still out on whether conservativism can overcome establishment forces among congressional Republicans and in administrative agencies, but even if it does not, President Trump’s judicial appointments are creating the most conservative federal bench in decades, which in some cases may trump the elected branches.
The odds are that by the end of President Trump’s current term, America will have its first conservative Supreme Court majority since before World War II, during the Great Depression. That fact has profound implications for the size and scope of government.
That was central to the theme of the 2017 Federalist Society National Lawyers Convention in Washington, DC in November: “Administrative Agencies and the Regulatory State.” Speeches and presentations given by speakers including Justice Neil Gorsuch, Attorney General Jeff Sessions, White House Counsel Don McGahn, and a host of other public officials made clear that many currently in power are willing to take a hard look at governmental programs and functions that have been unchecked since their creation years ago. And analysis by academics and top litigators explored serious policy and legal theories of what could be achieved in a conservative environment.
Equally fascinating with the Trump administration’s rightward trajectory is the massive pushback from the Left, including unprecedented obstruction in all three branches of government.
In the Constitution’s Article I branch, Congress, Senate Democrats are engaged in unprecedented obstruction against legislation and attempts to derail or slow-walk President Trump’s executive and judicial nominees, often voting along party lines against the confirmation of nominees who would have been confirmed almost unanimously just a decade ago.
In the executive branch, the Deep State consisting of countless nameless, faceless bureaucrats are either out of step with the duly elected president or even in open defiance of him. Article II of the Constitution specifies that all executive power in the federal government resides in the president, and everyone else in that branch should serve as his agents to implement that power consistent with the president’s agenda.
And in the Article III branch, the judiciary, federal judges at the trial level and appellate level are taking extraordinary measures in their efforts to stymie President Trump. District court judges are issuing nationwide injunctions against the president’s policies, when such orders are usually extremely rare, and issued only when they are absolutely necessary to give the plaintiff in the case complete relief for his alleged injury. And courts are vastly expanding their own purported powers in policy areas like immigration to block policies that the judges disagree with on a personal level.
With the Trump presidency, America is at a fork in the road. If President Trump achieves what he needs over the next year in terms of deregulation, executive action, trade, and especially judicial appointments, then with one or two legislative accomplishments (such as taxes and infrastructure) he could be well positioned for major pickups in the 2018 midterm elections that would enable him to achieve his entire first-term agenda going into the 2020 election contest.
By that time, the country could well have a judiciary that will restore meaningful constitutional principles on the separation of powers between governmental branches, limited federal power over the states and the people, restoring liberties such as free speech, religious freedom, the right to bear arms, and a proper application of criminal procedural rights, and appropriate limits to congressional statutes over commerce, the environment, and other policy areas.
Should these efforts be successful, then Americans in the next decade might experience what constitutional government looks like in the twenty-first century.