Judge Neil Gorsuch: A Constitutional Originalist Skeptical of Executive Power

My first thought upon learning that Judge Neil Gorsuch had been nominated to the Supreme Court was about how weird it was for the first time in eight years to hear the name of a judicial nominee and not immediately cringe.

In Judge Gorsuch, President Trump has selected someone that is, by all accounts, a strong writer and a strict originalist who is highly skeptical of the power of the Executive Branch of the Government. Nina Totenberg of NPR described him as a “proponent of originalism, the idea that the Constitution should be interpreted as the Founding Fathers would have more than 200 years ago, and of textualism, the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law.”

I was put into a good mood when I read that, although from a left-ish NPR reporter, words like “textualist” and “originalist” are not necessarily high praise. So I did my own digging to see what I could see.

Whatever his other merits, Judge Gorsuch does not, unfortunately, have a significant written track record on the Second Amendment. That said, I did two cases from his tenure on the 10th Circuit Court of Appeals that brushed up against the right to keep and bear arms; I want to talk about one of them right now, U.S. v. Miguel Games-Perez, which tells us a little more his approach to judicial decision-making than his views on gun rights. (The other will be saved for a later time.)

Mr. Games-Perez had been convicted of being a felon-in-possession of a Hi-Point .380 by a lower court in violation of 18 U.S.C. §§ 922(g) and 924(a). He appealed, arguing that the feds should have to prove that he *knew* that he was a felon and wasn’t supposed to have a gun; 2 of the 3 judges on the 10th Circuit’s panel essentially told him to pound salt.

Judge Gorsuch, although concurring in the result, wrote a separate opinion. Technically, he said, the statute had a mens rea requirement, meaning the feds ought to have to establish that Games-Perez knew he was a felon. No, this isn’t silly on its face. Games-Perez had signed a plea deal to the crime of felony attempted robbery in a Colorado court. If he’d completed the terms of the agreement, the charges would have been dismissed, but he was caught with his Hi-Point before then, so the deal went kaput. When the deal was signed, Games-Perez was explicitly told this by a state court judge:

“if I accept your plea today, hopefully you will leave this courtroom not convicted of a felony and instead granted the privilege of a deferred judgment.” After accepting the plea, the judge then said, “I am not entering judgment of conviction at this time, hopefully, I never will.” Thus, Judge Gorsuch concluded, a layperson like Games-Perez (who, I’m assuming, wasn’t exactly in contention for a Fields Medal,) might’ve reasonably thought he hadn’t actually been convicted of a felony. As a result, the Judge thought that the issue of whether or not Games-Perez knew he was a felon (and thus barred from possessing a firearm,) was a triable fact that should’ve been decided by a jury.

In the end, however, Judge Gorsuch joined the majority in the decision that sent Games-Perez down the river. Why? Because, like all lower court judges, he was bound to follow precedent set by the Supreme Court. He also made clear, however, that he thought the precedent he had to follow compelled him to make a “mistake”.

I recognize that precedent compels me to join the Court’s opinion. But candor also compels me to suggest that we might be better off applying the law that Congress wrote than the one [the Supreme Court] hypothesized…. If Congress wishes to revise the plain terms of [the law,] it is free to do so anytime. But there is simply no right or reason for this court to be in that business.

Did you like that? Good. Here’s something better.

Judge Gorsuch was also described by Jacob Gershman at the Wall Street Journal as a “searing critic” of the ‘Chevron deference‘ doctrine relating to Administrative Law. The doctrine requires courts to “defer to an executive agency’s interpretation of a congressional statute when no doubt exists about what lawmakers meant to enact. If the legislative basis for a regulation is in doubt, but the rule seems reasonably constructed, judges are supposed to give agency regulators the benefit of the doubt.”

Chew on that one for a second: even if the law is questionable, if the rule written by these unelected bureaucrats seems solid, the courts will defer to them.

Administrative law is the poison gas of the anti-gun lobby. I hope everyone remembers that incident back in 2015, when the Obama Administration tried to ban M855 and SS109 5.56mm ammunition through the promulgation of a new rule. The gun rights community rallied and forced them to back down, but the power wielded by unelected bureaucrats is troubling.

In an immigration case, Gutierriez-Brizuela v. Lynch, Judge Gorsuch had some pretty blistering things to say on the issue. From the Wall Street Journal:

Chevron deference, Judge Gorsuch wrote, “invests agencies with pretty unfettered power” and permits “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

He called Chevron deference a “judge-made doctrine for the abdication of the judicial duty.”

A judge who stands against administrative law and doesn’t want to legislate from the bench? This is sounding better and better. We still need to ask him some questions and learn more about him, but you can put me in the cautiously optimistic zone for now.

For what it’s worth, Senator Ted Cruz seems to be a fan:

Judge Gorsuch is brilliant and immensely talented. He has impeccable qualifications, having clerked at the Supreme Court, excelled in private practice, served at the highest levels of the Justice Department, and garnered a stellar reputation over the past decade as an appellate judge. More importantly, though, he also mirrors Justice Scalia in that he has a proven track record of honoring the Constitution, following the text of the law, and refraining from imposing his policy preferences from the bench. As a result of his fidelity to law, he has proven to be a champion of federalism, the constitutional separation of powers, religious liberty, and all of the fundamental liberties enshrined in our Bill of Rights. I couldn’t be happier with his selection.

Indeed, I wholeheartedly applaud President Trump for nominating Judge Gorsuch. Our country desperately needs Supreme Court justices who revere the Constitution and are willing to elevate it over their own personal preferences, and Judge Gorsuch has demonstrated that faithfulness.