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Constitutionalism and Its Discontents

Constitutionalism and Its Discontents
AP Photo/Jose Luis Magana

Dear Reader — 

It’s been a lively two weeks of executive orders, resignations, firings, protests, and Tweets. Critics blame the president’s lack of experience (or worse), while others blame the media for creating a climate of hysteria, obscuring the substance of the new administration’s policies. Yet amid all the uproar, something pointedly not uproarious took place: President Trump nominated Neil Gorsuch to replace Antonin Scalia on the Supreme Court. Here’s another notch for Trumpian consistency — Gorsuch was on a list of potential nominees circulated by the Trump team during the campaign — but also, perhaps, some reassurance for his critics.

“The Court” was a popular justification for voting Trump among conservatives who were otherwise unenthusiastic. For them, Gorsuch’s nomination will surely be taken as vindication. And even inveterate Never Trumpers are finding solace in the nomination of a jurist in the mold of Justice Scalia.

Unsurprisingly, some progressives are urging “categorical opposition,” even in the face of Republican threats to abolish the 60-vote threshold needed to overcome a filibuster. Others, who hope to avert this “nuclear option,” are taking a more pragmatic approach, citing Gorsuch’s character and credentials. Little appreciated, though, is what Gorsuch on the bench could promise for principled opposition to Trump.

A persistent worry among critics is that the president will exceed (or has already exceeded) the constitutional limits on executive power. The nomination of a constitutional conservative should help allay these fears. Though his jurisprudence would surely lead a Justice Gorsuch to be at odds with progressives on a number of issues — from gun rights to religious liberty — his critical stance toward “Chevron deference” should recommend him to those increasingly wary of executive overreach. 

Chevron deference, named for the 1984 case Chevron v. Natural Resources Defense Council, is the doctrine that the Supreme Court should allow administrative agencies to interpret statutes whose meaning is ambiguous. The effect is to empower agencies (a part of the executive) to interpret the law — a power traditionally reserved for the judiciary. Gorsuch, who has been more skeptical of Chevron deference than even the late Scalia, might be a bulwark against an emboldened executive.                                 

In the age of Trump, federalism has become an unlikely rallying cry for some on the Left. Will constitutionalism be another?

These are some of the many issues taken up at RealClearPolicy over the past week. Below you will find just a few highlights.

— M. Anthony Mills, editor | RealClearPolicy


Make Government Great Again. Salon’s Sean McElwee contends that the right response to “anti-government” biases is to “build up” and improve federal programs and agencies.

Trump’s Immigration Ban and Its Disastrous Consequences. In Politico, Daniel Benjamin argues President Trump’s executive action on refugees and immigrants may “weaken” national security and “diminish” America’s global leadership.

Gorsuch Could Rein in Regulators like the EPA and the FCC. In Vox, Timothy B. Lee considers what Neil Gorsuch’s appointment to the Supreme Court could mean for regulation.

The Case against the American Constitution. In The Week, Ryan Cooper maintains that the Constitution is “antiquated” and “poorly designed” and suggests that a parliamentary system would be “far superior.” 

Trump Is Violating the Constitution. For The New York Review of Books, David Cole makes the case that President Trump’s business interests put him at odds with the Constitution’s “emoluments” clause. 

Separating Fact from Hysteria on Trump’s Refugee Order. National Review’s David French places Trump’s controversial executive order in context.

Will Trump Choose Work Over Welfare? In our own pages, Robert Doar urges the new administration to look to Wisconsin as a model for how to reform government assistance programs.

The Vulgar and the Sophisticates. For City Journal, Harvey Mansfield considers whether our democratic institutions can “force” Donald Trump to behave like “a responsible president.” 

The Future of Liberalism. Niskanen Center’s Samuel Hammond outlines the “ideals of liberalism” and what it will take to preserve them in today’s political climate.

A Return to Constitutionalism. For Library of Law & Liberty, Richard Reinsch and Greg Weiner argue President Trump’s nominee for the Supreme Court may help shift politics from the “courtroom” back to “representative government.”

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