Article Image Ivan Eland - Senior Fellow and Director of the Center on Peace & Liberty, The Independent Institute


Neil Gorsuch, just another faux originalist judge

Written by Subject: Justice and Judges

After all the usual Washington confirmation theatrics, Neil Gorsuch, one way or the other, will likely be confirmed for service on the Supreme Court. Gorsuch has been advertised as a similar replacement for the deceased Antonin Scalia, who had styled himself as a small government "textualist." Let's hope Gorsuch will do better than Scalia's faux textualism.

Instead of paying attention to judicial precedent, Scalia claimed to be concerned about the text of the Constitution and the nation's Founders' original intent when they wrote those words (textualism is a subset of originalism). Yet Scalia was a big government conservative, essentially ruling that unless the Constitution prohibited the government from doing something, it could do it.

Consider the 2008 case Boumediene v. Bush, in which the Supreme Court ruled that even terrorism suspects had the constitutional right to challenge their detention under a writ of habeas corpus, which the Constitution says can only be suspended (implicitly by the Congress, not the president) in times of "rebellion or invasion." Scalia sided with the government.

The case was one of the most important in pushing back against the George W. Bush administration's use of the crisis of 9/11 (neither a rebellion or invasion) to deliberately and unconstitutionally expand executive power and Scalia would have allowed the government to act.  

Earlier, the progressive Republican president Teddy Roosevelt had applied a similar principle to the power of the presidency. Both men seemed to regularly ignore the Constitution's Tenth Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The implication of Scalia's stance is that the Tenth Amendment is moribund but a real textualist or originalist would have tried to bring it back into fashion.

In certain key areas, Gorsuch may be problematical as a real originalist too. As a high-level Justice Department official in the George W. Bush administration, Gorsuch argued for and helped craft a presidential signing statement that tried to interpret the ban on torture in the 2005 Detainee Treatment Act in a limited way.

First of all, presidential signing statements to "spin" congressionally passed laws more to the executive's liking — to justify creative enforcement or to influence future court rulings on the statutes — are nowhere to be found in the Constitution.

The president and executive branch are supposed to fully enforce the laws that Congress has passed and the president has signed. To interpret away Congress's law allows the president to legislate after-the-fact without the consent of, and likely against the will of, hundreds of members of Congress. If the president doesn't like what the Congress has legislated, the Constitution requires that he veto the bill — instead of signing it and then only later cleverly undermining the law.

Even worse, the Bush administration signing statement on torture claimed a right to bypass the newly passed law banning torture, using the president's constitutional power as commander-in-chief.  However, the Founders did not envision the president to be commander-in-chief of the country, but only more narrowly as the commander of U.S. armed forces on the battlefield — in effect, a civilian general that outranked his military counterparts. Any expansion of such power beyond this circumscribed role — to include ordering torture or otherwise — would need to rely on "inherent" presidential powers not enumerated in the Constitution.

Inherent (unstated) executive powers were originally first claimed for President George Washington by his Treasury Secretary Alexander Hamilton in order to create a Bank of the United States. Hamilton had to claim these powers, because nothing in the Constitution allowed the central government to charter banks. In fact, the delegates at the Constitutional Convention explicitly rejected such power for the federal government. Furthermore, inherent powers for any branch of the federal government would violate the Founders' intent to limit the power of that government by strictly enumerating its powers — as specifically noted in the aforementioned Tenth Amendment.

Gorsuch, also in 2005, helped support the Bush administration in its quest for expanding unconstitutional inherent presidential power.

Gorsuch helped justify Bush's authorization of National Security Agency (NSA) warrantless wiretapping of Americans' emails and phone calls in violation of the Foreign Intelligence and Surveillance Act (FISA) of 1978 and the Constitution's Fourth Amendment, which requires a warrant for such searches and makes no exceptions for national security. Again, the Bush administration was baldly asserting the potent power to violate congressionally passed laws and the Constitution in the name of "national security." When foreign leaders disregard their legislatures and rule by such fiat, we call them dictators.

Thus, if Gorsuch's previous actions are indicative, he — like Scalia — might unfortunately practice selective originalism.   

Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at the Independent Institute, a California-based non-profit, non-partisan, public-policy research and educational organization.