Gorsuch criticizes government agencies acting as ‘prosecutors and judges’ in new book

Supreme Court Justice Neil Gorsuch issued a stark warning about the dangers of federal agencies acting as “prosecutor and judge,” pointing to data showing a disturbing trend of cases effectively being excluded from public jury trials.

In an excerpt from his new book: Overruled: The Human Cost of Too Many Regulationsobtained by Washington ExaminerGorsuch has criticized the way federal agencies not only create and enforce binding rules but often also serve as prosecutors and judges. His book follows a recent Supreme Court term that dealt several blows to agency powers, including striking down Chevron a doctrine and case that limited internal decisions at the Securities and Exchange Commission.

“But the thing is, these days, federal agencies don’t just write and enforce legally binding laws. They often act as prosecutors and judges as well,” Gorsuch said.

Gorsuch has highlighted the inherent conflict of interest in agency rulings handed down by agency-appointed administrative judges, or ALJs, arguing that the process may not be truly independent.

“Often (an ALJ) is just another employee at an agency. Tomorrow, he could be reassigned to another position — perhaps writing policy or enforcing it,” Gorsuch wrote.

He believes this lack of impartiality biases the justice system in favor of the agency, as evidenced by the 90 percent success rate for internal Securities and Exchange Commission (SEC) investigations compared to 69 percent for federal court proceedings.

The Supreme Court recently ruled in favor of hedge fund manager and conservative radio host George Jarkesy, whom the SEC fined and barred from the industry after finding he had committed securities fraud. In a 6-3 decision that Gorsuch joined, the high court ruled that defendants like Jarkesy have a right to a jury trial.

Gorsuch also highlighted other examples of agency abuse in his book, noting that between 2010 and 2019, the Social Security Administration denied more than 60% of disability benefits applications, yet only about 1% of those claims were heard on the merits in federal court.

“Certainly, if you are unhappy with how an agency has handled your case, if you persevere through all of the internal review processes, and if you have enough time and money, you can typically take your complaint to federal court to be reviewed by an independent judge,” Gorsuch argued in one passage. “But what are the chances that you are going to be able to withstand all of that and allow that to happen?”

As he approaches his seventh year as a judge since being nominated by former President Donald Trump in 2017, Gorsuch, 56, has laid out his position in the book as an advocate for people who face serious challenges appealing decisions made by federal agencies.

The main message of the book is the belief that citizens today are faced with an unprecedented number of laws and regulations compared to the past.

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“Some professors argue that there are now so many federal laws and crimes that every American over the age of 18 commits one crime per day,” Gorsuch said. Fox News Sunday with Shannon Bream. “From 1970 to the present, the number of federal crimes on the books has perhaps doubled … and that’s just the tip of the iceberg, because federal agencies have also been busy,” the judge added.

The Supreme Court justice plans to hit the road this week, including visiting the Nixon and Reagan presidential libraries, to promote the Aug. 6 release of his book.