The Trump Court: SCOTUS Could Stand Some Disruption

By | 2017-06-02T18:30:05+00:00 December 22, 2016|
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What is Trump going to do?

During the campaign, Donald Trump vowed to “drain the swamp” in Washington, D.C. He was referring primarily to halting the “revolving door” now used by high-level federal apparatchiks to secure lucrative lobbying positions on K Street after leaving government service. This is a laudable and overdue reform. But draining the swamp in Washington will take more than that. Even the president-elect’s support of congressional term limits (which would require an improbable amendment to the Constitution) falls short of promising meaningful curtailment of the federal Leviathan.

To tame the modern administrative state—the metastasized product of too many unaccountable administrative agencies exercising powers far exceeding those granted to the federal government by the Founders—will require a radical transformation of constitutional law as we currently understand it. President Trump can achieve this only by appointing the right justices to the U.S. Supreme Court.

Trump’s electoral success lies in his role as disrupter. The greatest—and most-needed—disruption he could introduce would be to resurrect the long-neglected limits on federal government power that the United States Supreme Court abandoned during the 1930s, to enable the alphabet soup of New Deal agencies and legislation. Accordingly, Trump’s most important appointments will not be his cabinet and White House staff, but his Supreme Court nominees—beginning with the imminent choice of the late Antonin Scalia’s successor.

Trump has compiled what appears to be an excellent list of 21 potential candidates, drawn from sources I have long admired: the Federalist Society and the Heritage Foundation. But Trump’s most trusted advisers must look at the candidates very closely, carefully review their paper trails, and ask them some probing questions—“extreme vetting,” if you will—to make sure whoever he nominates will have the moxie and courage to chart a different course.

Many Republican presidents have been disappointed by their SCOTUS appointments (or at least they should have been). Yet all candidates on a president’s short list “looked good on paper” before ascending to the High Court. Richard Nixon batted .250, scoring only with William Rehnquist (and, embarrassingly, appointing the author of Roe v. Wade, Harry Blackmun); Gerald Ford went 0-1 with John Paul Stevens; Ronald Reagan hit a home run with Scalia, but struck out with Sandra Day O’Connor and Anthony Kennedy (in Reagan’s defense, he’d unsuccessfully nominated Robert Bork); George H.W. Bush made history with Clarence Thomas, but whiffed with David Souter; George W. Bush’s pick of Samuel Alito was a high point of his presidency, while John Roberts inexplicably voted twice to uphold Obamacare and even wrote the widely-panned opinions in NFIB v. Sebelius (2012) and King v. Burwell (2015). (Bush 43 was spared history’s harsher judgment for the ill-considered nomination of Harriet Miers, which he subsequently withdrew in favor of Alito.)

For Trump to succeed in his mission to “drain the swamp,” he has to bat 1.000 with his SCOTUS appointments—the equivalent of picking Scalia, Thomas, and Alito seriatim. All of the candidates on the shortlist (and many excellent prospects who did not make the initial cut) seem to meet the basic requirements of being smart, well-educated, and “conservative” (an imprecise label, as we shall see). Some candidates are “better” than others. What are the specific things Trump should look for in a High Court pick? (Besides appointing Scalia’s successor, over the next four—or eight—years, Trump will likely be able to fill a few more vacancies given the age of the current justices, possibly reorienting the court for decades to come.)

A Word About Terminology

Before addressing that, I want to clear up some common confusion about terminology, so a brief detour: In discussions about constitutional law, the key concepts are “originalism” (interpreting the Constitution according to its meaning when written and ratified) versus “non-originalism” (sometimes referred to as “the living Constitution” theory, which posits that judges should interpret the Constitution according to “the evolving needs of society,” or some similar folderol). In the third presidential debate, Hillary Clinton clearly embraced the latter school, which understandably has widespread support among liberal scholars wishing to impose their personal policy preferences on the rest of the country. In conservative legal circles, and due in no small part to the intellectual force of Justice Scalia, originalism has become the overwhelmingly dominant school of thought. Trump should only consider originalists, but that is just the beginning of the inquiry. Originalism is only a technique for constitutional interpretation; it does not dictate specific results. In navigational terms, originalism provides a general orientation, not exact GPS waypoints. Indeed, originalists can (and do) reach widely differing conclusions about the meaning of particular clauses of the Constitution.

The more salient division among right-of-center jurists and scholars is “judicial restraint” versus “judicial activism,” an important dichotomy that is sometimes confused because different people apply the labels differently. I explored the dichotomy in a 2015 article, “The Quandary of Judicial Review,” and will briefly summarize it here. In exercising judicial review consistent with Federalist  78, a judge should not hesitate to strike down a law that violates a specific provision of the Constitution, but is otherwise bound to enforce the law, despite subjective concerns about the law’s wisdom or necessity. This sounds simple but confounds many scholars on the Right, some of whom oppose any meaningful judicial review, and some of whom abhor “majoritarianism” (i.e., popular self-government).

In discussions regarding constitutional decision-making, the concept of “judicial restraint” (which is consistent with constitutionalism) is often contrasted with its opposite, “judicial activism” (which is not). The terms sometimes lead to confusion when “restraint” is used—incorrectly—to encourage judges to defer to the other branches whether or not a challenged law violates the Constitution. Likewise, the term “activist” is sometimes used—again, incorrectly—as a pejorative whenever a judge overturns a law, even if the law plainly violated the Constitution. As I wrote in National Review:

The Constitution embodies legitimate rights, which the courts are not just permitted, but obligated, to enforce. At the same time, the Supreme Court has invented many “rights” that appear nowhere in the Constitution and are, in fact, entirely the product of the justices’ own personal predilections…. Such predilections have no juridical weight and are entitled to no moral respect. Therefore, if a legitimate constitutional right is implicated, a court does not engage in “activism” by striking down a law that violates it. That is the court’s duty. Indeed, the court would be guilty of passivity (or outright abdication) if it upheld the law. Courts are supposed to uphold laws that do not violate a legitimate constitutional right, no matter how foolish the judges may think they are. That is exercising “judicial restraint” (a good thing). Conversely, if a court fails to strike down a law that does violate the Constitution (as the Supreme Court arguably did with Obamacare in NFIB v. Sebelius [2012]), it is not engaged in “judicial restraint,” but is guilty of passivity/abdication (a bad thing). However, giving the Court carte blanche to overturn laws for reasons not grounded in the Constitution invites judicial usurpation, which is both unprincipled and undemocratic. (Emphasis in original.)

This is not a trifling semantic distinction; it goes to the heart of sound constitutional decision-making. Some “conservative” legal scholars, such as Judge J. Harvie Wilkinson III, embrace an overly deferential role for judges. For example, Wilkinson has defended the execrable decision in NFIB v. Sebelius as an exemplar of “restraint” and has criticized Scalia’s landmark decision upholding the Second Amendment in District of Columbia v. Heller (2008) as manifesting “activism.” Wilkinson’s perspective, shared by some “old school” conservatives, promotes the jurisprudential status quo, and resembles the mentality of Establishment Republicans in Washington: don’t rock the boat.

On the other side of the ideological aisle, libertarian legal scholars who advocate a more aggressive role for judges in all cases deny the existence of judicial activism and regard any form of judicial restraint as “abdication.” Many libertarians view Roe v. Wade and similar decisions as a vindication of “unenumerated” individual rights.

Both camps are wrong. A principled constitutionalist enforces the Constitution (but only the Constitution).

Trump should—through extensive due diligence—make sure that any candidate he appoints to the Supreme Court does not share Wilkinson’s crabbed notion of the proper judicial role (which can be traced back to Progressive Harvard law professor James Bradley Thayer in the 19th century), or some libertarians’ equally mistaken conception of judges as Platonic Guardians (most notably advanced by Georgetown law professor Randy Barnett). Fittingly, misguided scholars from both camps joined the anti-Trump manifesto styled as “Originalists Against Trump.” Trump’s presidential campaign presented him as a “third way”—an agent of change that transcended traditional partisan differences. Trump could extend that vision to a judicial philosophy that is not mired in orthodoxy. Justice Clarence Thomas is the archetype of an originalist jurist who is devoted to the Constitution but does not feel constrained by erroneous precedents of the Court through the doctrine of stare decisis.

Who Then Should Judge?

Now let’s return to Trump’s SCOTUS picks. The greatest impediments to restoring constitutional government in the United States are the Supreme Court’s extravagant interpretation of Congress’s commerce clause power in Wickard v. Filburn (extending federal regulation to wholly intrastate activity) and the astonishing proliferation of federal administrative agencies, which despite being situated in the executive branch exercise both rulemaking (i.e., legislative) and adjudicatory (i.e., judicial) power. In performing these functions, administrative agencies not only lack constitutional authority, they operate in defiance of the separation of powers set forth in the Constitution. Even worse, the Supreme Court has issued precedents (including the Chevron decision) that often require courts to defer to administrative agencies due to the agencies’ presumed “expertise”!

As the volume, scope, and burden of federal regulations—laws enacted by unelected and unaccountable bureaucrats—continue to grow, critics have begun to question the constitutional foundation of the administrative state. Noted constitutional litigator Chuck Cooper and Columbia law professor Philip Hamburger (who wrote a 2014 book called Is Administrative Law Unlawful?) have made a powerful case that administrative agencies, as currently constituted, violate the constitutional separation of powers, echoing arguments that Justice Clarence Thomas has made in recent opinions. Trump should appoint justices in the mold of Thomas, who are willing boldly to reconsider prior SCOTUS decisions that have mistakenly granted the federal government powers in excess of its constitutional limits.

Not all of the candidates on Trump’s short list fit the bill. Some lean toward the Wilkinson model of excessive deference, and others lean toward the libertarian model of insufficient deference. For example, 11th Circuit judge William Pryor, widely regarded as a front-runner, is on record as describing New Deal commerce clause precedents as “defensible.” Granted, federal court of appeal judges are not expected to critique Supreme Court precedents, so the significance of this comment is limited. More troubling is Pryor’s concurrence in a decision that upheld the exercise of federal jurisdiction over an assortment of stray cats belonging to the Hemingway Home and Museum in Key West, Florida, on the ground that the cats “substantially affect interstate commerce.”

In contrast, 10th Circuit judge Neil Gorsuch has thoughtfully questioned Chevron deference and even suggested that Chevron is “no less than a judge-made doctrine for the abdication of the judicial duty.” I haven’t done enough analysis to endorse (or oppose) any particular candidates, although in my opinion the list could profitably be expanded to include some additional prospects, such as D.C. Circuit judge Brett Kavanaugh and Senator Ted Cruz. Bottom line: President Trump faces a momentous decision. Let’s hope he chooses wisely.

About the Author:

Mark Pulliam
Mark Pulliam is a lawyer and commentator who fled California and now lives in Austin, Texas. He is a contributing editor at the Library of Law and Liberty.
  • ricocat1

    Beyond correct interpretation of the Constitution President Trump should also look at youth. Ted Cruz, for example, should be able to be a strong conservative voice for many decades. Many others on that list are fine people but are in their 60s and might not serve as long. President Trump has an opportunity to shape the federal judiciary for many, many years. Let us not forget that there are currently 98 other federal judiciary vacancies and appointing young conservatives to the district and appellate federal courts is also important.

    • Mark Pulliam

      Philosophy and age are important, and so is courage. The overwhelmingly liberal orientation in legal academia, the elite media (NYT, WaPo), and Establishment political circles can seduce weak egos. Look at Kennedy and Roberts.

  • jack dobson

    I’m glad you heavily referenced the Chevron opinion. Taken to its logical conclusion, this decision would lead to the administrative state as final arbiter of pretty well everything (we are too close to that endpoint as it is). Simply because a potential nominee does well with checklist conservatism doesn’t make the person qualified let alone able to push back against the Dark State that has become the de facto government of the United States.
    You probably underestimate the importance of the cabinet choices, though. The key is to dismantle the administrative state so outrageous overreach doesn’t end up in court in the first place. Trump has made some outstanding choices in this regard, not the least of which is the nomination of Gov. Perry to oversee an agency he wants to abolish. For the first time in any of our lifetimes, the reach of the federal government is about to be scaled back. Reagan simply slowed it. Trump will actively reverse it.

    • Chevron simply calls for deference to administrative decisions interpreting a statute that is ambiguous when the enforcement of that statute falls within the agencies jurisdiction granted to it by Congress. Thus, the problem lies not always with the agencies but with Congress’s shirking its responsibility and granting too much authority to the agency. Even Scalia was good with Chevron generally.

  • Christian Cardall

    Regarding judicial enforcement of “only the Constitution”… Do only the rights enumerated in the Bill of Rights deserve judicial enforcement? What about the 9th and 10th amendments?

    • Severn

      Do only the rights enumerated in the Bill of Rights deserve judicial enforcement?

      None of the rights held by the American people “deserve judicial enforcement”. The idea that the purpose of the courts was or is to “enforce” certain “individual rights” does not exist in the thinking of the Founders, and would have struck them as downright odd. Nothing has been more damaging to the core civic ideals of America than the ceding of vast power to the judicial branch on the grounds that this branch – the branch which is the least accountable of all – speaks for each of us.

      • asmith

        You are both correct and concurrently wrong.

        IF the court can not find an enumerated constitutional power authorizing a law – that law is unconstitutional regardless of whether it infringes on enumerated or unenumerated rights.

        What power the constitution does not grant govenrment is denied it.
        And we expect the courts to do so.

        Further you have a bizarre understanding of rights and liberty.

        Contra the left few rights – primarily the right to initiate force or fraud infringe on other rights.

        All rights save those few trump “the will of the people”.

        Generally when the left or right think there is some conflict between rights, they are conflating a conflict between a real right – the liberty to conduct ones own life as one pleases, with very few well defined constraints – force fraud, actual harm and contract.
        and a wish by some group to direct the way others live.

  • Margaret Diefenderfer

    Mark – Excellent article, thank you. Question: Isn’t there an additional way to rein in the court system beyond appointing good quality judges? Can’t Congress also legislate for the courts, requiring them to adhere to appropriate standards of originalist interpretation and judicial restraint? Perhaps this could serve as the basis for another article.

    • MDavis

      No. Separation.

    • Jeff

      There’s actually several things Congress can do but they neither seem to have the guts to do it and the voters don’t hold their feet to the fire.

      First, they could start writing more specific laws and specifically write into the laws restrictions on agency discretion. Much of the attention on the Court involves “big ticket” items like abortion. But the real elephant in the room (which the author alludes to) is the “Chevron deference” doctrine in which courts give deference to any reasonable interpretation of a statute by an agency. This has created in effect a second legislature (the various agencies). This only exists because of Congress writing broad vague laws and Chevron. Although Congress can’t write a law telling the courts not to use a Chevron analysis, they can write laws which have the same effect e.g. ones that are more specific and which specifically limit agency discretion. But Congress likes writing broad good sounding laws and letting the agencies take the hit for imposing the actual costs.

      Second, if your problem with is with the court system (as I mentioned I think a bigger problem is Congress and the administrative state) Congress does have the power under Article III of the Constitution to strip courts of their jurisdiction to hear cases. Because of the Due Process clause it is questionable whether you could strip jurisdiction from ALL the federal courts (i.e. a defendant would probably have to be able to have his case heard in some federal court) but you could strip it from the Supreme Court and thus eliminate this law making by the Supreme Court.

  • Brian B

    There is another tool which the founders explicitly gave congress to prevent the court’s overreach; restriction of the court’s jurisdiction. It’s not a risk free method, as the other party can do the same when it’s in power but on balance a legislative slap across the face reminding the court it is not some dictatorial, unaccountable branch the others must defer to is a good and necessary idea.

  • Strass Luna

    Taking our lives BACK from the court should be the priority of ALL real Americans.

  • olderwiser

    The amendment process is the means that the Founding Fathers provided to keep the Constitution current and relevant in the face of a changing world. The Liberal Progressive impulse to change the definition of the original words used in the Constitution is an end run around one of the most important checks on unbridled Federal power that we have as Americans. The Constitution means exactly what it meant when the original words were so carefully chosen over 200 years ago. If Liberal Progressives want to change it, they have the amendment process to do so. If they can’t muster the support needed to pass an amendment, their failure illustrates that the Constitutional check on Federal power AND mobocracy is working as intended.

    • Karen Alden

      God, you’re a depraved idiot. Where DO you get the crapola you spew? Putin?

  • Fred Friedman

    Any judge chosen should be hostile to the ACLU agenda of turning dysfunctional behavior into civil rights-no gay marriage, transgender toilets, no compulsory unionization, should support religious freedom -the right to pray and celebrate religious holidays in public venues-schools malls etc, the right not to require religious institutions to perform abortions, euthanasia, or preside over same sex marriages, the right to own a gun, support of school choice, uphold voter ID laws, end affirmative action. Trump must thoroughly scrutinize every judge he is considering for any pending judicial opening. He needs a judge who will be unequivocally opposed to the tenets of modern leftism especially expansion of the administrative state and the willingness of government agencies to override the economic and religious liberties of every citizen. No more Souters, Kennedy’s or “moderate conservatives” The left must be defeated before it does any further damage to our cultural and political life and the first place to fight for it’s defeat is in the reconstruction of the judiciary.

    • AZN8V

      “-the right to pray and celebrate religious holidays in public venues” Be careful what you wish for…I would hate to hear muzz prayer calls on loudspeaker at 4:00 a.m. and see prayer rugs littering the public square.

      • asmith

        Protecting you from a society where you must tolerate what you hate is not the role of government. I do not expect prayer calls on loudspeakers or prayer rugs in the square but you are as obligated to accept others choices with regard to those – as the choice to post billboards selling vodka or cigarettes or gathering in the square to protest abortion.

    • asmith

      Our religious rights and freedom are no different from those other rights and freedoms you wish to constrain.

      The constitution is one of enumerated powers – the federal govenrment can do whatever is explicitly authorized by the constitution – no more.

      The text of the constitution prohibits government from interfering in private contracts.
      Government is obligated to enforce our contracts – not decide what contracts we should be allowed to make and which we should not.

      If a man and a man wish to contract to share their lives – government is as obligated to enforce that as it is if a man and a women make the same choice.

      The role of government is to secure our liberty – religious or otherwise.

      It is NOT governments role to stop us from making poor decisions – so long as those choices do not actually harm others.

      If you wish to drink large sugary drinks, or have your life terminated – regardless of how poor that choice may be, it is your choice and government may not interfere.

  • Madame George

    Strict adherence to originalism is a dangerous practice. Taney believed he was correctly interpreting the Constitution, as understood by its writers, when he held that African slaves and their descendants were not citizens and, thus, had no standing to sue. The United States Supreme Court’s most abhorrent decision was based on originalism. No matter how hard originalists try to cast off Dred Scott, it remains.

    Here’s Taney, aptly applying originalism to the question of slavery and the standing of a former slave to sue in a United States court of law:

    “In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

    It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of
    Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken. […]

    The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as anarticle of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States.

    […]

    The language of the Declaration of Independence is equally conclusive:

    It begins by declaring that, ‘when in the course of human events it
    becomes necessary for one people to dissolve the political bands which
    have connected them with another, and to assume among the powers of the
    earth the separate and equal station to which the laws of nature and
    nature’s God entitle them, a decent respect for the opinions of mankind
    requires that they should declare the causes which impel them to the
    separation.’

    It then proceeds to say: ‘We hold these truths to be self-evident: that all men are created equal;
    that they are endowed by their Creator with certain unalienable rights;
    that among them is life, liberty, and the pursuit of happiness; that to
    secure these rights, Governments are instituted, deriving their just
    powers from the consent of the governed.’

    The general words above quoted would seem to embrace the whole human
    family, and if they were used in a similar instrument at this day would
    be so understood. But it is too clear for dispute, that the enslaved
    African race were not intended to be included, and formed no part of the
    people who framed and adopted this declaration; for if the language, as
    understood in that day, would embrace them, the conduct of the
    distinguished men who framed the Declaration of Independence would have
    been utterly and flagrantly inconsistent with the principles they
    asserted; and instead of the sympathy of mankind, to which they so
    confidently appealed, they would have deserved and received universal
    rebuke and reprobation.

    Yet the men who framed this declaration were great men—high in
    literary acquirements—high in their sense of honor, and incapable of
    asserting principles inconsistent with those on which they were acting.
    They perfectly understood the meaning of the language they used, and how
    it would be understood by others; and they knew that it would not in
    any part of the civilized world be supposed to embrace the negro race,
    which, by common consent, had been excluded from civilized Governments
    and the family of nations, and doomed to slavery. They spoke and acted
    according to the then established doctrines and principles, and in the
    ordinary language of the day, and no one misunderstood them. The unhappy
    black race were separated from the white by indelible marks, and laws
    long before established, and were never thought of or spoken of except
    as property, and when the claims of the owner or the profit of the
    trader were supposed to need protection.

    This state of public opinion had undergone no change when the
    Constitution was adopted, as is equally evident from its provisions and
    language.

    The brief preamble sets forth by whom it was formed, for what
    purposes, and for whose benefit and protection. It declares that it is
    formed by the people of the United States; that is to say, by those who
    were members of the different political communities in the several
    States; and its great object is declared to be to secure the blessings
    of liberty to themselves and their posterity. It speaks in general terms
    of the people of the United States, and of citizens of the several
    States, when it is providing for the exercise of the powers granted or
    the privileges secured to the citizen. It does not define what
    description of persons are intended to be included under these terms, or
    who shall be regarded as a citizen and one of the people. It uses them
    as terms so well understood, that no further description or definition
    was necessary.

    But there are two clauses in the Constitution which point directly
    and specifically to the negro race as a separate class of persons, and
    show clearly that they were not regarded as a portion of the people or
    citizens of the Government then formed.

    One of these clauses reserves to each of the thirteen States the
    right to import slaves until the year 1808, if it thinks proper. And the
    importation which it thus sanctions was unquestionably of persons of
    the race of which we are speaking, as the traffic in slaves in the
    United States had always been confined to them. And by the other
    provision the States pledge themselves to each other to maintain the
    right of property of the master, by delivering up to him any slave who
    may have escaped from his service, and be found within their respective
    territories. By the first above-mentioned clause, therefore, the right
    to purchase and hold this property is directly sanctioned and authorized
    for twenty years by the people who framed the Constitution. And by the
    second, they pledge themselves to maintain and uphold the right of the
    master in the manner specified, as long as the Government they then
    formed should endure. And these two provisions show, conclusively, that
    neither the description of persons therein referred to, nor their
    descendants, were embraced in any of the other provisions of the
    Constitution; for certainly these two clauses were not intended to
    confer on them or their posterity the blessings of liberty, or any of
    the personal rights so carefully provided for the citizen.

    No one of that race had ever migrated to the United States
    voluntarily; all of them had been brought here as articles of
    merchandise. The number that had been emancipated at that time were but
    few in comparison with those held in slavery; and they were identified
    in the public mind with the race to which they belonged, and regarded as
    a part of the slave population rather than the free. It is obvious that
    they were not even in the minds of the framers of the Constitution when
    they were conferring special rights and privileges upon the citizens of
    a State in every other part of the Union.

    Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended to them.”

    • asmith

      Bzzt, wrong.

      There is no presumption that the originalist interpretation of the constitution is “right” whatever that means. Only that it is the one that the court must arrive at and government must follow.
      That is what the rule of law not man means.

      The constitution had and has errors. We correct those by amendment – not through the judiciary.

      There is no theory of constitutional interpretation that applies to amendment.
      There is no decision of the court – whether wise or stupid that can not be changed by amendment.

      We correct whatever we beleive to be the errors in the constitution by amendment.

  • Michael Renn

    Ted Cruz

  • Negan ✓ᴰᵉᵖˡᵒʳᵃᵇˡᵉ

    I think the problem with hit and miss judges on the SCOTUS is that the court is the last stop. They can decide what is law and what isn’t with no repercussions.

  • asmith

    The author make one very serious error regarding “:judicial activism”

    The constitution defines what government can do. When the constitution is silent – the answer is NO! not yes,

    Of course the constitution is a “living constitution” – we can change it whenever we want.
    But it can not be changed by judges or by legislation. It is changed only by amendment.

    If we feel the constitution limits government in unacceptable ways – we must amend the constitution.

    We can not expand the power of government by judical fiat. Nor by legislation.

    Our government is not majoritarian democracy, and judges giving their impramatur to laws with no foundation in the constitution is little better than blessing those prohibited by the constitution.

    The fundimental principle of constitutional interpretation is to defer to the rights of the individual.
    What the constitution doesn’t permit is prohibited.

    Where there is disagreement – work to amend the constitution.

  • Implicit in Mr Pulliam’s comments, though unfortunately explicitly absent, is a history of consideration of the 10th Amendment by potential SCOTUS Justices. Strict application of that amendment would, all by itself, do much to eradicate the “administrative state”–much of the repudiation of the Constitutional separation of powers is in areas in which the federal government was granted no Constitutional power in the first place.

  • frankieboy1

    would also like to see geographic/educational institution diversity as well-why do all the justices have to come from the Northeast or attend either Harvard or Yale Law?

  • stephen duval

    The Supreme Court is an institution of the Federal government. Rather than limiting the power of the Fed govt, the SC has been complicit if not a leader in the unconstitutional expansion of Fed govt power. While appointing the “right” people to the SC will make a difference, it is foolish to regard this as a long term solution.

    The States are the natural check to the power of the Fed govt. Article V of the Constitution provides the States with the power to amend the Constitution. An Article V Convention of the States has the power to propose amendments to the Constitution and 38 States have the power to ratify the proposed amendments.

    The interests of the States favor the transfer power from the Fed Govt to the State govt. In general, the States are neutral with respect to reform of the Fed govt. The States will tend to oppose amendments that restrict the power of Fed and State govt in favor of the liberty of the People. A package consisting of the first two items could easily be passed. If the third was included, it would be more difficult to ratify.

    The first section would restore federalism. Two thirds of the States could veto a Fed law or judicial decision, a majority of States could veto a Fed regulation. Land and water, including the US Exclusive Economic Zone would be transferred to the States except for a max of 10% reserved for the Fed govt. Air, wildlife, and natural resources would be under State govt. All local and social policy would be under State govt. Fed Senators would be appointed by the State Governor with the advice and consent of the State Senate. All Fed govt programs would be converted to block grants.

    Fed govt reform would include Congressional term limits, 20 year terms for judges, balanced budget amendment, Congressional veto of regulations by majority vote in either House, all Judicial power would be removed from the Executive branch, Congress would have prosecutorial power for Executive branch employees for perjury before Congress, or obstruction of a Congressional inquiry with sentences limited to dismissal and loss of pension, any Executive branch employee who invokes the Fifth Amendment in a Congressional inquiry will be fired and lose their pension, the SC could not amend the Constitution in the manner in which common law is developed, a person’s property can not be seized unless they are convicted of a crime, Prosecutors commit a felony if they coerce testimony using prosecutorial powers, and juries shall have the power to remove a Prosecutor for abuse of power.

    This is the only way to drain the swamp.

  • R J Ault

    Wow. If the Great Pumpkin listens to lunatics like Pulliam we can get back to the good ole days of Dred Scott an Plessy. His right wing fanaticism turns Clarence Thomas, who is literally too dumb to follow oral argument and ask questions, into a great justice instead of the bad joke he is. He excoriates thoughtful conservative justices like O’Connor, Kennedy, and Roberts because they refuse to act as right wing robots. The law licenses of all UT graduates should be immediately revoked if this guy is representative.

  • Jeff

    “In contrast, 10th Circuit judge Neil Gorsuch has thoughtfully questioned Chevron deference and even suggested that Chevron is “no less than a judge-made doctrine for the abdication of the judicial duty.” I

    Judge Gorsuch should be on any very short list for the Court simply because of his criticism of the Chevron doctrine. The Chevron doctrine should be thrown on the scrap heap of judicial history. As a practical matter it gives way too much deference to agencies and unconstitutionally allows them to become a second legislature. Philosophically, it is (as it is practiced) in conflict with other doctrines.

    As to the latter, one can not reconcile the non-delegation doctrine with how the courts currently use Chevron. Although the non-delegation doctrine hasn’t been used in a while to strike down a law, it is still good law. It holds that Congress can’t delegate law making powers to the executive branch (this is the basis for professor Hamburger’s contention that the administrative state is unconstitutional) unless there is an “intelligible principle” (the Court’s words) to guide the agencies i.e. Congress can give the agencies some leeway but there has to be some guidelines and they can’t give them a blank check. But as it is currently practiced, the Chevron doctrine allows agencies to adopt either of two diametrically opposed positions. For example, an agency can claim the XYZ law is nebulous on the issue of the regulation of carbon dioxide. Thus, as practiced under Chevron, the agency can either choose to regulate carbon dioxide under the XYZ law or not. If they can adopt either of two polar opposite positions how does that square with the requirement (under the non-delegation doctrine) that the law have an “intelligible principle” to guide the agencies. If the “intelligible principle” is that flexible then you effectively don’t have one.

    There is no need to give agencies leeway in interpreting laws. If Congress wants to regulate carbon dioxide or any other chemical, let them write a specific law regulating it. Chevron simply lets Congress pass the buck. They can write a general nice sounding law and then let the agencies take the blame for actually imposing the specific hardships. Any judge that wants to dump Chevron is worth taking a long look at.

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