It’s the Commerce Clause, stupid. It’s also about the immense vastness of Donald J. Trump’s election victory. The nomination of Neil Gorsuch to the Supreme Court by President Donald J. Trump will be remembered as the brave and transformational moment it is.
Small minds will talk about abortion, the second amendment to the Constitution, religious liberty, and all their pet causes. But the nomination of Neil Gorsuch is greater than all that.
Shortly after the November presidential election we proposed that “The Vastness Of The Trump Revolution Is Immeasurable“:
Archimedes postulated that if he had a lever long enough and firm ground underneath he could move the world. In that spirit we note that if we had a measuring tape that could circumnavigate the political world it would fall short of measuring the immeasurable Trump triumph of 2016.
That’s where we are right now.
Ten days ago our comments section noted an article about Neil Gorsuch with the speculation “This will likely be the next Justice to the Supreme Court.”
The article from SCOTUSblog (which we suggest reading in full) discussed Neil Gorsuch, how smart he is, how he is Scalia-like in his writing and wit, personal details, his employment history, his jurisprudence, etc. But we honed in on what matters, what really really matters:
Another area of the law in which Gorsuch has shown both his writing talent and his similarity to Scalia is in the application (and critique) of doctrines surrounding the so-called “dormant commerce clause.” These doctrines treat the commerce clause not only as a grant of power to Congress to make laws regulating interstate commerce, but as a kind of presumptive limitation on the power of states to make laws that either unduly burden or unfairly discriminate against interstate commerce, without regard to whether Congress has ever passed a law in the relevant area. Because — as its name suggests — the dormant commerce clause cannot actually be found in the text of the Constitution, Scalia eventually came around to the view that it should not be a thing, and refused to endorse any future expansions of the doctrine. For example, in 2015, in a dissenting opinion in Comptroller v. Wynne, Scalia stated: “The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause.” Although a court of appeals judge lacks the same freedom to disparage and/or depart from existing Supreme Court precedent, Gorsuch’s opinions also reveal a measure of distrust towards unwritten constitutional provisions like the dormant commerce clause.
For example, a 2015 10th Circuit decision written by Gorsuch, Energy and Environment Legal Institute v. Epel, declined to apply the dormant commerce clause to strike down a clean-energy program created by Colorado on the grounds that it might negatively affect traditional energy producers outside the state. The opinion explains that this result is consistent with the limited reach of the dormant commerce clause’s “judicial free trade policy” even under existing precedent. But while acknowledging that lower courts must take the Supreme Court’s doctrine as they find it, Gorsuch’s opinion shows respect for the doctrine’s “[d]etractors,” like Scalia, who “find dormant commerce doctrine absent from the Constitution’s text and incompatible with its structure.” Though Gorsuch’s personal constitution seems to require him to write clearly about the many unclear aspects of the doctrine, his opinion plainly takes some joy in the act of demonstrating that not only does the dormant commerce clause not apply — the doctrine also doesn’t make much sense. That same instinct is present in a prominent concurrence last year in Direct Marketing Association v. Brohl, in which Gorsuch singled out one aspect of dormant commerce clause doctrine—the Quill rule that exempts out-of-state mail order sales from state sales tax—as an “analytical oddity” that “seems deliberately designed” to be overruled eventually. This opinion aligned him with Justice Anthony Kennedy (who has called for overruling Quill), and again with Scalia, who identified Quill as part of the “bestiary of ad hoc tests and ad hoc exceptions that we apply nowadays” under the dormant commerce clause.
The dormant commerce clause isn’t a particularly hot-button issue, nor does it have obvious liberal/conservative fault lines. But it’s noteworthy that criticism of the dormant commerce clause is of a piece with criticism of the “right to privacy” that undergirds the Supreme Court ‘s abortion jurisprudence, as well as other judge-made doctrines that do not have a strong connection to the constitutional text. Again, Gorsuch’s opinions seem to follow the lead of textualists and federalists like Scalia in expressing great skepticism towards such doctrines, which allow judges to strike down duly enacted local laws on the basis of vague principles that cannot be found in the concrete text of the national charter.
The first step will be to destroy the dormant Commerce Clause. The second step will be to greatly trim the entire Commerce Clause which has been used by the federal government to claim jurisdiction over just about anything. That’s the meaning in full of the Neil Gorsuch nomination.
The nomination of Neil Gorsuch to the Supreme Court will bring real Niagara level tears, not fake tears to Obama Dimocrats. President Trump with this nomination attempts to be what lazy Barack Obama wanted to be: transformational.
In the coming weeks there will be lots of strategies and tactics deployed around this Supreme Court nomination. President Trump will develop a courageous strategy and deploy smart political tactics to this fight. The Obama Dimocrats will only have tactics and chickens screaming as their heads are separated from their bodies, wings flapping in death.
President Trump has demonstrated immeasurable vastness of courage with his selection of Neil Gorsuch. This will be an epic battle for confirmation.
Trump could have selected Thomas Hardiman as his choice. Hardiman is conservative enough and his personal story (taxi driver to pay for college, first in his family to go to college) would have been hard for Obama Dimocrats to oppose, even though they would have. We suspect Hardiman would have moved to the left on the court and become another Souter. President Trump also could have selected William Pryor. Pryor is a staunch conservative but he also had problems on the right. Hardiman and Pryor would have faced a fight against Obama Dimocrats but nothing like what Neil Gorsuch will face.
Neil Gorsuch is young, willing, Oxford, and most able. He will need all his talents to accomplish the attack against the Commerce Clause which began and was then abandoned by the Rehnquist Court. All other sexy hot-button issues will be sub-issues to the great battle against the Commerce Clause.
It might not be sexy, but Neil Gorsuch, intends to trim the Commerce Claws, er Clause.