What Exactly Do Justices Thomas and Gorsuch Disagree About In Loper Bright
Back to Loper Bright. Both Justices Thomas and Gorsuch wrote concurrences. Justice Thomas explained why Chevron violated the separation of powers. Justice Gorsuch argued that stare decisis, as he conceives it, demands that Chevron must be overruled. Both of these concurrences were solo. Why did Thomas not join Gorsuch? Why did Gorsuch not join Thomas?
Justice Thomas include this somewhat cryptic star footnote:
*There is much to be commended in JUSTICE GORSUCH‘s careful consideration from first principles of the weight we should afford to our precedent. I agree with the lion’s share of his concurrence. See generally Gamble v. United States, 587 U. S. 678, 710 (2019) (THOMAS, J., concurring).
Gamble declined to overrule the dual sovereignty doctrine. Here is the relevant passage from Justice Thomas’s Gamble concurrence:
Insofar as the expansion of the reach of federal criminal law has been questioned on constitutional rather than policy grounds, the argument has focused on whether Congress has overstepped its legislative powers under the Constitution. See, e.g., Gonzales v. Raich, 545 U.S. 1, 57–74, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (THOMAS, J., dissenting). Eliminating the dual-sovereignty rule would do little to trim the reach of federal criminal law, and it would not even prevent many successive state and federal prosecutions for the same criminal conduct unless we also overruled the long-settled rule that an “offence” for double jeopardy purposes is defined by statutory elements, not by what might be described in a looser sense as a unit of criminal conduct. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Perhaps believing that two revolutionary assaults in the same case would be too much, Gamble has not asked us to overrule Blockburger along with the dual-sovereignty rule.
Gamble v. United States, 587 U.S. 678, 710, 139 S. Ct. 1960, 1980, 204 L. Ed. 2d 322 (2019)
What exactly is the delta between Justices Thomas and Gorsuch here? I do not know. I wish Thoma
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