Gorsuch's assurances to Senate likely to be tested upon confirmation

The sincerity of the assurances made by Supreme Court nominee Judge Neil Gorsuch to the Senate Judiciary Committee in the course of confirmation hearings that the president “is not above the law,” is likely to be tested if, as expected, he is approved by the Senate for the vacant seat on the High Tribunal. Gorsuch’s declaration, offered in reply to tough questioning about the scope of presidential power to ignore or violate statutes, represented a key moment in his testimony, not only to explain his previous writings, but for cases coming before the Court involving President Trump.

As a senior official in the Department of Justice under President George W. Bush, Gorsuch drafted a memo for then U.S. Attorney General Alberto Gonzales in which he argued that the president possessed “inherent power” as commander in chief to “override” statutes that prohibited torture and warrantless surveillance. Gonzales proceeded to press that controversial assertion which, critics pointed out, effectively placed the president above the law.

Judge Gorsuch sought to explain to members of the Senate Judiciary Committee that in his capacity as an attorney in the DOJ, he was performing his duties as an “advocate” for the president. At this juncture, he stated, “I am a judge.”

The distinction between the roles and duties performed by an attorney and those of a Supreme Court Justice are substantial, as Gorsuch maintained, recalling the explanation advanced by Chief Justice John Roberts during his own confirmation hearings: “Judges call balls and strikes.” Indeed Justice Robert H. Jackson, who had served as attorney general under President Franklin Roosevelt, observed in an acclaimed opinion in the Steel Seizure Case (1952), that judges are free to reject arguments made by justice department officials, even when the arguments are those that they had made when they, themselves, were advocates.

Was Judge Gorsuch a mere scrivener, as he contended, trying to balance competing positions within the DOJ, or did he really believe, and does he still believe, that the president may “override” a statute on grounds of inherent power? That is a question of great moment for a constitutional system, based on the rule of law, a proposition at the time of the framing that emphasized subordination of the president to the Constitution and statutory law. Asked by Sen. Patrick Leahy (D-Vt.), if he could cite even one instance in which the Supreme Court had ever held that the president possessed inherent power to override a statute, Gorsuch replied that he could not.

Judge Gorsuch’s answer was correct, of course. An inherent presidential power to violate a statute at his pleasure would scuttle the principles of our constitutional jurisprudence. More than that, the Framers of the Constitution rejected the premise of an inherent power to override laws when they provided in the “Take Care Clause” that the president must “faithfully execute the laws,” a provision designed to preclude the president from exercising the “override” authority of the king of England, who could dispense with the enforcement of laws that he didn’t like.

As a member of the Supreme Court, Justice Gorsuch’s denial that the president is above the law will likely be tested. Cases involving President Trump’s violation of the Emoluments Clause are in the judicial pipeline. Trump’s capacious conception of the power of his office, evidenced in his administration’s claim that the president’s decisions in the realm of national security are “unreviewable” by courts, will come before the Supreme Court. In such circumstances, Gorsuch may be asked to rule on the merits of the very arguments he once made while an official in the justice department.

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David Adler is president of the Alturas Institute, a nonprofit established to promote the Constitution and civic education. He has lectured nationally and internationally on the Constitution and the presidency, and is co-author of the recently published, “The War Power in An Age of Terrorism: Debating Presidential Power.”