Mark Pulliam of American Greatness, a Constitutional Originalist of finicky opinion, has some definite thoughts on who the Illegimate Justice should be:
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.
On the one hand, you have to have some sympathy for Mark concerning an opinion in which a pack of stray cats are considered to affect interstate commerce. On the other hand, it all dries up when he mentions Senator Cruz as a good pick.
