What Ben Sasse Got Wrong at the Kavanaugh-Ford Hearing

By Rob Schwarzwalder Published on October 1, 2018

Senator Ben Sasse gave an impassioned speech at the Kavanaugh-Ford hearing. It now has two million views on YouTube and a whopping 10 million on Facebook.

In about 12 minutes, Sasse explained a key reason the federal government has gotten so enormous. So controlling. “Congress has decided to self-neuter,” he said. “Most people here want their jobs more than they really want to do legis­la­tive work, and so they punt their legislative work to the next branch.”

He’s right, of course. Congress is home to a handful of men and women who care about the Constitution. They’re willing to make tough votes, even at political cost. But as for the rest? To paraphrase Samuel Clemens (Mark Twain), “Suppose you were a moral coward. Suppose you were a member of Congress. But I repeat myself.”

What Sasse Missed

But the brave Senator from Nebraska missed something in his eloquent remarks. Yes, Congress bucks its duties. But its failure is not just a matter of laziness and political self-interest. It’s intentional.

Why? Because the left has adopted a two-pronged strategy to get what it wants:

  1. Make the Supreme Court the branch that determines not whether a law is constitutional. Instead, make it the branch that decides what the law will be.
  2. Keep expanding the size and complexity of the administrative state.

The Federal Courts Often Allies of the Left

First, the Left has for decades seen the Supreme Court as its greatest ally in overturning the will of the people as enacted through Congress, state legislatures, and ballot initiatives. What leftists cannot achieve through these means, they get through the federal courts. That’s why they contest many federal judgeships in the Senate. It’s why the Kavanaugh hearings turned into a kangaroo court.

Consider: California’s vote to affirm marriage as the union of one man and one woman was blocked by a federal judge who was in sympathy with same-sex “marriage.” All state laws holding the historical view — and there were 32 states that had decided to uphold traditional marriage — were swept away by Justice Anthony Kennedy’s bad majority opinion.

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The vote on Neil Gorsuch was less contentious because it was pretty much a parallel swap. The seat of the late, great Antonin Scalia would be filled by another brilliant conservative jurist. And the Court’s majority would remain, on social issues, leaning left.

But Justice Kennedy’s retirement is much more horrifying to the left. Instead of a so-called “moderate,” a conservative administration and Congress will put in place a genuine constitutionalist. Someone who doesn’t squeeze the document’s words until they shriek what he wants. Kavanaugh believes that the Constitution has a fixed and knowable meaning. So, he won’t be making law from the bench by rejecting laws not in sync with the leftist program of rule through biased judicial decisions.

The Left and the “Administrative State”

Second, the federal government is an byzantine web. “The Federal Register indicates there are over 430 departments, agencies, and sub-agencies in the federal government,” observed Senator Chuck Grassley in 2015. “And the pronouncements of this ever-expanding administrative state impact nearly every aspect of Americans’ daily lives. The data support that fact. The 113th Congress (2013-2014), for example, enacted just under 300 laws. Over the same two-year period, the federal bureaucracy finalized over 7,000 regulations.”

Many of these regulations are almost too dense to understand. For example, in 2016, the Federal Register added more than 95,894 pages to its already vast total (“Pages in the Federal Register (1936 – 2017”).

Congress has lost interest in enacting laws because doing so can hurt politically. But it has not surrendered its power. Instead, it makes public policy through the demands it imposes on the vast federal bureaucracy.

How does all of this relate to the Sasse speech? The left views the administrative state as a way to enact rules that promote their statist vision. As the eminent conservative scholar John Marini argues, “Congress (has retained) its autonomy, and political authority, by establishing itself as the overseer of the executive branch. In the process, individual committees and members were empowered to oversee the various departments and agencies of the executive branch. They would soon become major players in the administrative policymaking process.”

In other words, Congress has lost interest in enacting laws because doing so can hurt politically. But it has not surrendered its power. Instead, it makes public policy through the demands it imposes on the vast federal bureaucracy.

What We Need to Do

What we need, as Senator Sasse noted, is to recapture the Founders’ views on the role of the states, the federal courts, the Executive Branch, and Congress itself. But this is not enough. We need a revolution of understanding among the American people that they no longer control their government. Bureaucrats do.

That’s not what the Constitution calls for. Are we willing to defend a return to our founding principles?

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