What kind of conservative is Gorsuch?

AEI is on fire today.  Here is a careful analysis of where Gorsuch is and is not in line with traditional conservative judicial trends.  The bottom line:  "If Gorsuch is confirmed, he is likely to be a vote for deference to state governments and to Congress but not to government agencies." He may be skeptical of the "dormant Commerce Clause" doctrine, as Scalia was; in other words, he may be inclined to support federal control over arguably interstate commerce only where Congress has explicitly occupied the field, not in every area where Congress might conceivably opt to occupy the field someday. Also like Scalia, he is skeptical of government agencies' attempts to usurp the legislative function and might be inclined not to grant them the usual deference when they do so. In these areas he is in line with the most recent developments in conservative judicial theory.

He may be a bit of an outlier, however, in his principled refusal to override state or federal legislative authority in any other areas. That may make him a bit like Justice Roberts: not inclined to rescue voters from the bad effects of their decisions where there is any doubt at all about the Constitutional issue implicated.


E Hines said...

Here's what Gorsuch said about Chevron deference, from one of the cases AEI cited:

Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is "the very definition of tyranny." But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state — and spawned along the way more than a few due process and equal protection problems....

Other branches--not only the judiciary. And all those artificial contradictions.

Regarding his remark about the "dormant Commerce clause," Detractors find dormant commerce clause doctrine absent from the Constitution’s text and incompatible with its structure[,] Gorsuch is right. There is no legitimate inference that courts should limit how much states can regulate interstate commerce. The Constitution is quite clear on the limits it places on States' ability to regulate interstate commerce; those limits are enumerated in Art I, Sect 10 and emphasized in Art IV, Sect 1. That these are an exhaustive enumeration is made clear in the 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved....

Regarding his being not inclined to rescue voters from the bad effects of their decisions[,] he should be so disinclined. Such rescues--if indeed one should be truly necessary, and not just a figment of a litigant's, or a judge's, imagination--are political matters and so outside the scope of an American judiciary. If a voters' decision is contrary to the Constitution, they should be rescued from it by the courts, but of course that political decision already has been made and the relevant instruction given the courts: by the Constitution. If the voters want to insist on that decision, Art V lights the way.

I like this guy. He may not be perfect, but he's far and away a better alternative than most of the others on offer.

Eric Hines

Ymar Sakar said...

The most important question is does he have anything people can use for blackmail.