http://www.scotusblog.com/2017/01/poten ... l-gorsuch/Quote:
Another area in which Gorsuch has written persuasively in a manner that closely echoes Scalia relates to how to interpret criminal laws correctly, so as to avoid criminalizing potentially innocent conduct. One of Gorsuch’s most notable opinions in this area also happens to overlap with the hot-button issue of gun ownership — although the case is not about the Second Amendment, and doesn’t involve anything like the typical gun-rights groups.
A federal criminal law prohibits the knowing possession of a gun by a felon. This law has given rise to a debate about how best to read its limitation to “knowing” violations: Does it apply whenever a felon knowingly possesses a gun, or must violators also know that they have been convicted of a felony? This matters, because lots of minor crimes might technically be felonies, and lots of dispositions that seem inconsequential (because they involve no jail time) might technically be felony convictions. And the penalties for violating this law can be very high. In United States v. Games-Perez, in 2012, Gorsuch urged the 10th Circuit to review its rule holding that it is enough to support a conviction that the defendant knew he possessed the gun, whether or not he knew he was a felon. The opinion is an example of Gorsuch’s strong commitment to textualism, and a severe critique of using legislative history — particularly to make criminal what might otherwise be innocent. Accordingly, it is easy to hear clear echoes of Scalia’s views regarding the proper reading of statutes — especially criminal statutes — as well as the importance of focusing on ordinary usage and linguistic rules.
A few examples make the resemblance even clearer. Take this sentence from Games-Perez: “For current purposes, just stating Capps‘s holding makes the problem clear enough: its interpretation—reading Congress’s mens rea requirement as leapfrogging over the first statutorily specified element and touching down only at the second listed element—defies grammatical gravity and linguistic logic.” Or this passage, which contains both an endorsement of Second Amendment rights and a classic Scalia principle about attaching mens rea requirements to the element that criminalizes innocent conduct:
'Besides, even if the government could somehow manage to squeeze an ambiguity out of the plain statutory text before us, it faces another intractable problem. The Supreme Court has long recognized a “presumption” grounded in our common law tradition that a mens rea requirement attaches to “each of the statutory elements that criminalize otherwise innocent conduct.” … Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.'
That last bit is key. He reads statutes just like Scalia, in what I think is a perfectly reasonable method.
Quote:
Another area of the law in which Gorsuch has shown both his writing talent and his similarity to Scalia is in the application (and critique) of doctrines surrounding the so-called “dormant commerce clause.” These doctrines treat the commerce clause not only as a grant of power to Congress to make laws regulating interstate commerce, but as a kind of presumptive limitation on the power of states to make laws that either unduly burden or unfairly discriminate against interstate commerce, without regard to whether Congress has ever passed a law in the relevant area. Because — as its name suggests — the dormant commerce clause cannot actually be found in the text of the Constitution, Scalia eventually came around to the view that it should not be a thing, and refused to endorse any future expansions of the doctrine. For example, in 2015, in a dissenting opinion in Comptroller v. Wynne, Scalia stated: “The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause.” Although a court of appeals judge lacks the same freedom to disparage and/or depart from existing Supreme Court precedent, Gorsuch’s opinions also reveal a measure of distrust towards unwritten constitutional provisions like the dormant commerce clause.
For example, a 2015 10th Circuit decision written by Gorsuch, Energy and Environment Legal Institute v. Epel, declined to apply the dormant commerce clause to strike down a clean-energy program created by Colorado on the grounds that it might negatively affect traditional energy producers outside the state. The opinion explains that this result is consistent with the limited reach of the dormant commerce clause’s “judicial free trade policy” even under existing precedent. But while acknowledging that lower courts must take the Supreme Court’s doctrine as they find it, Gorsuch’s opinion shows respect for the doctrine’s “[d]etractors,” like Scalia, who “find dormant commerce doctrine absent from the Constitution’s text and incompatible with its structure.” Though Gorsuch’s personal constitution seems to require him to write clearly about the many unclear aspects of the doctrine, his opinion plainly takes some joy in the act of demonstrating that not only does the dormant commerce clause not apply — the doctrine also doesn’t make much sense. That same instinct is present in a prominent concurrence last year in Direct Marketing Association v. Brohl, in which Gorsuch singled out one aspect of dormant commerce clause doctrine—the Quill rule that exempts out-of-state mail order sales from state sales tax—as an “analytical oddity” that “seems deliberately designed” to be overruled eventually. This opinion aligned him with Justice Anthony Kennedy (who has called for overruling Quill), and again with Scalia, who identified Quill as part of the “bestiary of ad hoc tests and ad hoc exceptions that we apply nowadays” under the dormant commerce clause.
Any jurist that will openly--and gleefully, it seems--wrangle in the commerce clause is alright by me.
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