Clarence Thomas Dreams of Monarchy

In ruling after ruling, the Supreme Court justice has penned separate opinions to push for an expansion of executive power beyond what his conservative colleagues support.

The most important part of any Supreme Court ruling today is the majority opinion, for that is what the law is. The second-most-important part is whatever Justice Clarence Thomas writes separately, for that is what the conservative legal movement would like the law to be.

Thomas has long carved out a reputation for frequent and idiosyncratic opinion writing. He pens more concurring and dissenting opinions than any of his colleagues on the high court. (Chief Justice John Roberts, by comparison, has not written separately in the last two terms.) This year alone, in a wide range of cases, Thomas sketched out a stunningly broad view of executive power—and, simultaneously, a sharply narrowed view of congressional power—that verges on the monarchical.

This can manifest in both historic cases and less closely watched ones. In Monsanto v. Durnell, for example, the court was asked to decide whether a federal law on insecticides could preempt state-level lawsuits against the makers of Roundup. The court’s answer was “yes,” with which Thomas agreed. But he then went further, in a concurring opinion, to “call attention to some of the underlying constitutional infirmities in the [Federal Insecticide, Fungicide, and Rodenticide] Act.”

In his view, the law exceeded Congress’s powers under the commerce clause. “This power allows Congress to regulate ‘selling, buying, and bartering’ across state lines,” he wrote, quoting from a concurring opinion that he wrote in 1995. “It does not allow Congress to regulate ‘agriculture’ or ‘manufacturing,’ activities entirely ‘separate’ from ‘commerce.’”

Huh? It is somewhat absurd to treat “agriculture” or “manufacturing” as distinct from “commerce,” as if farmers grow crops and factories make goods for recreation instead of economic reasons. Thomas’s own phrasing of the commerce clause is much narrower than its actual text, which gives the legislature the power to regulate “commerce … among the several states.” Thomas’s interpretation, if adopted by the high court, would demolish most federal statutes that regulate the economy.

In Learning Resources v. Trump, the Supreme Court struck down the “Liberation Day” tariffs imposed by Trump last April. The court concluded that the Cold War–era law invoked by Trump did not allow him to impose tariffs via its permission to “regulate importations.” Some of the court’s conservative members disagreed with this interpretation, including Justices Samuel Alito and Brett Kavanaugh.

Thomas also disagreed with the majority’s holding but, as usual, opted to take it one step further. He argued that Congress could delegate, and had broadly delegated, its power to levy tariffs to the presidency. Thomas claimed that the nondelegation doctrine, which generally forbids one branch of........

© New Republic