As Justice Gorsuch rails against federal rules, some profiled in his new book embrace more measured view
By John Fritze, CNN
(CNN) — Supreme Court Justice Neil Gorsuch is using a new book to lament what he sees as an explosion of government rules he fears is having serious consequences for the “lives and liberties of every American.”
But some of the people the conservative justice portrayed in the book as victims have a more nuanced view of the regulations that ensnared them, saying they understood the underlying need for the rules.
For instance, Gorsuch describes an out-of-control federal bureaucracy that went after Marty Hahne, a Missouri magician who became a cause célèbre for anti-regulation advocates a decade ago when the US Department of Agriculture required him to draft an emergency disaster plan for Casey, a rabbit he pulled out of a hat at his shows.
But Hahne was exempted from that requirement six years ago, following a bipartisan uproar over his story. As he drove to a magic show in Minnesota last week, Hahne told CNN he recognized that the regulation was a needed response to thousands of animals that were abandoned when Hurricane Katrina made landfall in 2005.
“Nobody wants to see a pet get abandoned,” Hahne said.
“I certainly see no problem with a circus needing to know what to do when a tornado hits their tent,” Hahne said. The US Department of Agriculture regulation Gorsuch skewers in his book was probably “well intentioned,” Hahne said, “but just maybe the implementation of it was a little excessive.”
Gorsuch is on a publicity tour weeks after the Supreme Court handed down high-profile decisions undermining the power of federal agencies to create regulations without approval from Congress. In perhaps the most significant of those rulings, a 6-3 majority said that federal agencies should have far less leeway to interpret vague laws passed by Congress.
The Supreme Court’s conservative majority has used the same or similar legal reasoning on alleged government power grabs to shut down President Joe Biden’s efforts to forgive billions in student debt, ban bump stock devices and impose a host of environmental regulations.
Gorsuch, who did not respond to a request for comment, voted with the majority in all of those cases.
His co-author, Janie Nitze, said in a statement that the book makes clear that the highlighted laws often “are well-intentioned.”
“Often, too, they were created because of a public demand for a law – any law – to address a perceived societal ill,” said Nitze, who clerked for both Gorsuch and liberal Justice Sonia Sotomayor. “But the question posed by our book is do we sometimes go too far in our zeal for law, and what is the human toll of our ever-increasing legal edifice?”
In “Over Ruled: The Human Toll of Too Much Law,” published last week, Gorsuch and Nitze at times raise the idea that the laws and regulations they’re focusing on may have been well-meaning. But the thrust of the book – not to mention its title – press the idea that there are too many rules for most businesses and individuals to follow.
“To be fair, those who make the laws, write the rules, and insist on the proper paperwork often act with the best of intentions,” the book states at one point. “But a narrow focus on pursuing one set of goals can sometimes fail to account for other considerations important to a health society.”
Gorsuch, who was former President Donald Trump’s first nominee to the high court and who sometimes embraces a libertarian streak, offers little in the way of explanation about the reasoning or history of the laws and rules he criticizes, say advocates who support those regulations. He notes that the USDA regulation that “thwacked” Hahne was imposed “after Hurricane Katrina.” But animal rights groups say the rule was created in part to reduce the burden on first responders tasked with recovering animals that break free from circuses and zoos when disaster strikes.
“It’s so easy to target something as ‘the government is controlling everything,’” said Nancy Blaney, director of government affairs for the Animal Welfare Institute. “But in terms of this having addressed a problem? It sure did.”
Hahne was exempted from the regulation after the agency adopted a relatively straightforward solution in 2018: The USDA said the requirement wouldn’t apply to people with fewer than eight animals. In addition to rabbits, the modification also exempted people exhibiting eight or fewer dogs, cats, hamsters, guinea pigs, chinchillas, cows, goats, pigs and sheep.
Hahne, who goes by Marty the Magician, agrees with Gorsuch’s take that the enforcement was a major hassle: There were surprise home inspections, for instance, and unnecessary veterinary appointments.
Hahne still owns Casey the rabbit, but she’s no longer doing hat tricks. At 13, Hahne said, Casey is retired from the magic business.
“No rabbit,” he said. “It’s been so much easier.”
‘Sober bar’ owner speaks out
Gorsuch, who spoke at the Reagan and Nixon presidential libraries last week about his new book, calls attention to the story of a commercial fisherman in Florida who was threatened with a 20-year prison sentence for tossing undersized grouper overboard – a case that was decided by the Supreme Court in 2015. He writes about an order of monks that was barred from selling caskets in Louisiana. And he tells the story of several Americans and businesses affected by social-distancing restrictions during the Covid-19 pandemic.
One of them is Chris Reed, a managing partner at Northern Illinois Recovery Center and a board president at New Directions Addiction Recovery Services, organizations that provide treatment for people confronting alcohol and drug addiction in Chicago. Back in 2010, Reed struck on the idea of a “sober bar,” a place where people could meet and socialize without alcohol.
The bar was a hit and Reed was planning an upgrade right before Covid-19 shut down vast portions of the American economy. The “sober bar” was deemed a non-essential business and its operations ceased.
Gorsuch worries that the rules put in place during the pandemic had an outsized impact not only on drug treatment and mental health but also democracy. He writes that the “restrictions on our ability to gather – to learn together, eat together, pray together, struggle together, keep sober together – became increasingly a matter not of choice but of official fiat.”
Reed doesn’t disagree with that, but he also said he understood the need to close down social settings in the early months of the crisis.
“There were negative impacts because of those rules and restrictions that were put in place,” said Reed, who said he wasn’t aware Gorsuch had included his story in the book until contacted by CNN. “But do I understand why those restrictions were put in place? For sure.”
Focusing on pandemic restrictions was a notable choice for Gorsuch – in part because of the shift the Supreme Court took on that issue when Trump named his third nominee, Justice Amy Coney Barrett, and gave conservatives a 6-3 supermajority.
Initially, the high court rejected emergency appeals from churches in California and Nevada that sought to roll back social distancing restrictions. But when liberal Justice Ruth Bader Ginsburg died in 2020 and was replaced by Barrett, the court switched gears. Barrett sided with her fellow conservatives, shooting down restrictions on churches and synagogues.
At the time, Gorsuch wrote a cutting concurring opinion agreeing with that change.
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” he wrote in late 2020. “We may not shelter in place when the Constitution is under attack.”
Reed got the sober bar up and running again in 2022.
Gorsuch disclosed receiving $250,000 from publisher HarperCollins last year. Several justices are either publishing or working on books this year. Justice Ketanji Brown Jackson, a member of the court’s liberal wing, is set to publish a memoir in coming weeks. Conservative Justice Brett Kavanaugh disclosed recently that he, too, is working on a memoir.
In her statement, Nitze said that the book is consistent with the “broader sentiments expressed by Mr. Hahne and Mr. Reed.”
Amish water wars
Gorsuch also drew from an opinion he wrote in 2021 to tell the story of an Amish community in Minnesota and its fight with the county government over wastewater.
In 2013, Fillmore County demanded that the Swartzentruber Amish, who reject modern technology, obey an ordinance requiring most homes to use use septic systems to treat “graywater,” the wastewater that comes from laundry and bathing. The community asked the county to allow other, less technologically advanced systems because of its religious beliefs.
When that was denied, members of the community sued.
“The county wasn’t having it,” Gorsuch writes in his book. Officials told the plaintiffs that “they could not remain in their home permanently without a compliant modern septic system.”
The case wound up at the Supreme Court and Gorsuch wrote a strongly worded concurring opinion siding with the Amish community and sending the case back to state courts for further review.
What Gorsuch doesn’t mention, however, was the reason county officials demanded the system: Greywater can slip into the well water that the community drinks. And the wastewater at issue, experts say, frequently contains viruses and bacteria, such as from the washing of cloth diapers.
“There’s very little debate that greywater can make people sick,” said Sara Heger, a wastewater treatment expert and a researcher and instructor at the University of Minnesota who was an expert witness for the county in an earlier stage of the case. “When you wash your clothes or your body, there’s pathogens on them.”
The issue, Heger said, was whether there was a way to treat the water that accommodated the religious beliefs of the community. A state appeals court ruled last year that the county hadn’t established the need for the septic system because it had not specifically tested the water from the plaintiffs’ drains.
Health officials in Minnesota said they are still attempting to resolve the dispute. The case is pending at the state’s highest court.
“Fillmore County and much of southeastern Minnesota have a porous landscape vulnerable to pollution that impacts our drinking water and streams,” a spokesman for the Minnesota Pollution Control Agency said in a statement. The agency “continues to work with Fillmore County and the Amish community to identify workable solutions to this critical wastewater issue, and to ensure the public’s health and well-being.”
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