On Monday the Senate Judiciary Committee will begin confirmation hearings on the nomination of Neil Gorsuch to the U.S. Supreme Court.
Gorsuch is a highly respected federal judge with admirers across the political spectrum. But there are still some major unanswered questions about his jurisprudence. Here are three questions that I would like to hear Judge Gorsuch address as he faces the Senate Judiciary Committee next week.
1. Congressional Power
The use of recreational marijuana is currently legal in eight states. Yet Congress continues to ban marijuana on the federal level, and the Supreme Court has upheld the federal marijuana ban as a lawful exercise of Congress's power to regulate interstate commerce. The Supreme Court did this in the 2005 case of Gonzales v. Raich, despite the fact that the medical marijuana at issue in that dispute was both grown and consumed entirely within the state of California.
I'd like to hear Judge Gorsuch, a self-described constitutional originalist, explain his views on the proper scope of congressional power under the Commerce Clause. Does he think that the federal authority to regulate interstate commerce is broad enough to allow Congress to ban a local activity that is legal under state law and that never crosses any state lines?
2. Executive Power
The federal courts are currently hearing arguments about the constitutionality of President Trump's newly revised executive order banning travelers from certain majority-Muslim countries. In February the Trump administration told the U.S. Court of Appeals for the 9th Circuit that Trump's first executive order on this matter was effectively beyond the reach of "even limited judicial review." In fact, according to the Trump administration, the federal courts have no business taking "the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority."
I'd like to know if Judge Gorsuch agrees that the president's executive orders are beyond the reach of judicial review if the orders are ostensibly connected to the president's "formal national-security judgment." How deferential must the federal courts be to president when he is acting in the name of national security?
3. Unenumerated Rights
The Constitution lists of a number of individual rights that the government is forbidden from violating, such as the right to free speech and the right to keep and bear arms. But the Constitution also refers to rights that it does not expressly list. For example, the 9th Amendment says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Likewise, the 14th Amendment says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."
The Supreme Court has recognized and protected a number of unwritten rights over the years, such as the right to privacy, the right of parents to educate their children in private schools, and the right to gay marriage. None of those rights appear anywhere in the text of the Constitution.
In his 2006 book The Future of Assisted Suicide and Euthanasia, Judge Gorsuch sharply criticized the Supreme Court for protecting unenumerated rights via the Due Process Clause, claiming that the clause is "stretched beyond recognition" when it is held to be "the repository of other substantive rights not expressly enumerated in the text of the Constitution or its amendments."
Judge Gorsuch has apparently rejected the idea of defending unenumerated rights under the Due Process Clause. But what about the 9th Amendment? And what about the Privileges or Immunities Clause? Regrettably, his book did not address those provisions. I'd like to hear what Judge Gorsuch has to say about them. What is his view of the 9th Amendment? What does he think the Privileges or Immunities Clause means? Does he believe that either one protects any rights that are not listed in the Constitution? And if not, does he think the Supreme Court should reverse its prior decisions and eliminate the unwritten right to privacy?
The American people deserve to hear what Judge Gorsuch has to say about these crucial constitutional issues. The Senate Judiciary Committee should ask him about them during his confirmation hearings next week.