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Prof. Michael McConnell on Judge Neil Gorsuch and executive power


Prof. Michael McConnell (Stanford), who served for some years with Judge Neil Gorsuch on the Tenth Circuit, praises him highly; here's a passage on Gorsuch and executive power (some paragraph breaks added):

Tenth Circuit judges do not have many opportunities to rule on the scope of executive power, but arguably this will be the most prominent Supreme Court issue of the coming decade. Not only will there be high-profile contests involving the ever-controversial President Donald Trump, but there will be even more cases involving the ever-increasing authority of bureaucratic agencies to govern our lives without congressional say-so or real democratic accountability.

As it happens, Neil Gorsuch has addressed this question, albeit obliquely. An alien, Hugo Rosario Gutierrez-Brizuela, applied to the immigration authorities for a change in immigration status. The executive branch, however, had changed its mind about how to handle this class of aliens, and applied its new-found ideas retroactively to Mr. Gutierrez-Brizeula.

The court rejected the government's position for technical reasons. Judge Gorsuch filed a separate concurring opinion. Rather than characterize it, I will quote a passage from the opinion. I believe it tells us all we need to know about what kind of Justice my former colleague will be:

[T]he founders considered the separation of powers a vital guard against governmental encroachment on the people's liberties, including all those later enumerated in the Bill of Rights.

What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment—and raising along the way, too, grave due process (fair notice) and equal protection problems.

Conversely, what would happen if politically unresponsive and life-tenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.

In times like these, we need judges who are neither toadies nor resisters. We need judges who take their bearings from the Constitution, and not from party loyalties. In Neil Gorsuch, we have such a judge.