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In National Review, I write that Trump’s SCOTUS shortlist gets two cheers–my guarded optimism is due to the fact that his announcement was equivocal of whether he would actually stick with this list. As for the first two cheers, the selections are important for four main reason.

First, his list of potential nominees did not all receive their law degrees in Cambridge, Mass., or New Haven, Conn.Second, Trump did not limit his search to the usual inside-the-beltway favorites. Third, for the first time in a generation, not a single judge from the D.C. Circuit Court of Appeals — often called the second-highest court in the land — made the Supreme Court shortlist.Fourth, this geographic diversity also instills a respect for the principles of federalism: Not all of the answers to our problems will come from the seat of the central government, many will come from the “laboratories of Democracy” in the several states.

Here is the introduction:

In his dissent in last summer’s same-sex marriage case, Justice Antonin Scalia lamented that the Supreme Court is “hardly a cross-section of America.” The problem, Scalia wrote, is that the most serious questions of constitutional law are resolved by a “strikingly unrepresentative” group of attorneys from elite circles. Donald J. Trump’s list of eleven potential nominees to the Supreme Court would fix that problem. Rather than focusing on the usual shortlist of well-credentialed jurists who live along the Amtrak corridor between Boston and D.C., Trump cast a wider net to provide better representation of our constitutional culture. I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, but so long as he sticks with this list, I remain cautiously optimistic.

And here is my conclusion, which sounds a note of caution:

But I must temper my optimism with a note of caution: Mr. Trump stopped short of guaranteeing that he would pick someone from this list. In March, he unequivocally promised, “I will pick, 100 percent pick” from the list. Now, he would only say that these jurists will serve as a “as a guide to nominate our next” justice, and that the list was “representative of the kind of constitutional principles I value.” I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, and this equivocal language leaves me doubting more. For now, I can only give it two cheers. If Mr. Trump wants the third cheer, he must convince us that this will not end up as a “If you like your justices, you can keep your justices” promise. This must be a promise to keep.

Indeed, after the article went to press, Trump last night tweeted that he may add new names.

My list of potential U.S. Supreme Court Justices was very well recieved. During the next number of weeks I may be adding to the list!

— Donald J. Trump (@realDonaldTrump) May 19, 2016

This is the sort of thing that weakens any confidence I have that he will stick with his promise.

On the third point, I was struck by Politico’s interview of Larry Tribe, among others, who were surprised by Trump’s decision not to pick the usual suspects, including Judge Kavanaugh or Paul Clement

While Trump’s list pulled in five judges from various state supreme courts, he passed over some of those long considered top contenders for any future Republican Supreme Court pick, like 6th Circuit Judge Jeffrey Sutton, D.C. Circuit Judge Brett Kavanaugh and former Solicitor General Paul Clement.

“The missing names … are even more interesting than the names on the list,“ said Harvard Law Professor Laurence Tribe, once considered a top Supreme Court possibility for Democrats.

Trump’s judicial roster includes a bevy of rock-ribbed conservative jurists, many of whom have résumés in Republican politics, ties to The Federalist Society and mentors among the most conservative figures on American courts. But it’s a list designed more to limit any blowback from conservative politicians than to identify a successor to the late Justice Antonin Scalia, a bracing intellectual who dominated conservative legal thinking during his three decades on the court.

With all respect to Larry Tribe, the last time he recommended a Republican nominee to the Supreme Court was in 1987, when he used every ounce of his ability to oppose Robert Bork–a conservative legal giant from the D.C. Circuit. He then turned around to endorse a Sacramento Republican, Anthony Kennedy, whom he knew would overturn Bowers v. Hardwick. Tribe is estopped from offering any comments on the credentials Republican nominees.

The Trump Campaign has released eleven possible nominees to the Supreme Court. From the federal courts of appeals, he has proposed Steven Colloton (CA8), Raymond Gruender (CA8),  Thomas Hardiman (CA3),  Raymond Kethledge (CA6), William Pryor (CA11), Diane Sykes (CA7), From the state Supreme Courts, he has nominated Allison Eid (Colorado),  Joan Larsen (Michigan), Thomas Lee (Utah), David Stras (Minnesota), and @JusticeWillett (Texas).

This list impresses me for three reasons. First, five of the jurists come from the state court system. We have not had a Justice appointed from a state court since Ronald Reagan plucked Sandra Day O’Connor from the Arizona Court of Appeals. Appointing jurists from the states will implicitly reinforce the importance of federalism–and that the federal Constitution is not the end-all, be-all of laws. Second, the nominees also embody a deep respect for originalism, which was the jurisprudential theory that Justice Scalia taught to a generation of attorneys and judges. Judge Sykes ruled in an important gun case, where she undertook an effort to understand and apply the original understanding of the Second Amendment. Third, he has selected jurists who have evinced a commitment to judicial engagement, and not a rote application of judicial deference. For example, Justice Willett of Texas has written a rigorous and intellectually rich discussion of judicial protection of economic liberty. I still harbor serious doubts about Mr. Trump’s views on constitutional law, but his advisers have served him well here. I hope he stays true to these nominees, and does not subject the judicial selection process to a terrific deal.

Take 30 minutes and watch Justice Thomas’s commencement address at Hillsdale College. It is truly inspirational. I offer here a few excerpts I typed out, without commentary. These will be used for the final chapter of #Unraveled.

 This has been a most difficult term at the Court. This difficulty is underscored by the sudden and tragic passing of my colleague and friend, Justice Antonin Scalia. I think it is fitting to say a few a few words about him, particularly here. Many will focus on his intellect and legal prowess. I do not demure in either case, there is so much more to the man than that. When I think of Justice Scalia, I think of the good man whom I could instinctively trust during my first days on the court, and those were challenging days. He was in the tradition of the south my youth, a man of his word, a man of character. Over the almost 25 years that were together, I think we made the Court a better place for each other. I certainly know that he made it a better place for me. He was kind to me when it mattered most in those early days. He is and will be sorely missed.

Things that were once considered firm have long since lost their vitality, and much that seemed inconceivable is now firmly or universally established. Hallmarks of my youth such as patriotism and religion seem more like outliers, if not afterthoughts.

Words actually matter, not a current newspeak. I admit to be unapologetically Catholic, unapologetically patriotic, and unapologetically a constitutionalist.

It is as thought freedom and liberty exist, wholly independent of anything we do.

This era is one in which any difference or different treatment is inherently suspect. Apparently we all deserve the same rewards, the same status, notwithstanding the differences in our abilities. It is no wonder that we hear so often what is deserved or to what one is entitled.

It is not often that one hears of our obligations or our duties as citizens, unless of course there’s talk about duty to submit to yet another new policy being suggested or proposed.

If we continue to consume the benefits of a free society, without replenishing or nourishing it, we will eventually deplete it. If we are not making deposits to replenish our liberties, then who is? Re we content to let others do the work, to let a few give the last full measure for liberty while we consume the benefits? If so, perhaps one day, we will run out of other people’s sacrifice and courage, and perhaps we will run out of courageous people willing to make the sacrifice.

This is Hillsdale College, and you are special. Hillsdale is a trustee of the heritage that finds a clear expression in the American experiment of self-government under law. The very existence of Hillsdale connotes independence. It understands that liberty is an antecedent of government, not a benefit from government.

There were the Irish nuns who believed in us and lived in our neighborhood. Small lessons such as these became big lessons for how to live our lives.

Do not hide your faith and your beliefs under a bushel basket especially in this world that seems to have gone made with political correctness.

Hillsdale College, a school that has stood fast on its principles and its traditions at great sacrifice and great cost.

Justice Thomas dissented rom denial of certiorari in United Student Aid Funds v. Bryana Bible. Thomas continued to his call to overturn Auer (Seminole Rock) deference. He catalogued all of the Justice’s who have “personally driven pencils through the creature’s heart,” what Thomas refers to as the “metastasized” deference doctrine.

Any reader of this Court’s opinions should think that the doctrine is on its last gasp. Members of this Court have repeatedly called for its reconsideration in an appro- priate case. See Mortgage Bankers, 575 U. S., at ___–___ (ALITO, J., concurring) (slip op., at 1–2); id., at ___ (Scalia, J., concurring in judgment) (slip op., at 5); id., at ___ (THOMAS, J., concurring in judgment) (slip op., at 1–2); Decker, 568 U. S., at ___–___ (ROBERTS, C. J., concurring) (slip op., at 1–2); id., at ___–___ (Scalia, J., concurring in part and dissenting in part) (slip op., at 2–7); Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. 50, 68– 69 (2011) (Scalia, J., concurring); see also Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___–___ (2012) (slip op., at 10–14) (refusing to defer under Auer). And rightly so. The doctrine has metastasized, see Knudsen & Wildermuth, Unearthing the Lost History of Seminole Rock, 65 Emory L. J. 47, 54–68 (2015) (discussing Semi- nole Rock’s humble origins), and today “amounts to a transfer of the judge’s exercise of interpretive judgment to the agency,” Mortgage Bankers, supra, at ___ (slip op., at 13) (opinion of THOMAS, J.). “Enough is enough.” Decker, supra, at ___ (opinion of Scalia, J.) (slip op., at 1).

Thomas notes that the application of Auer deference in this case is particularly egregious, because the Department of Education first articulated it in an amicus brief to the 7th Circuit!

This case is emblematic of the failings of Seminole Rock deference. Here, the Court of Appeals for the Seventh Circuit deferred to the Department of Education’s inter- pretation of the regulatory scheme it enforces—an inter- pretation set forth in an amicus brief that the Department filed at the invitation of the Seventh Circuit. For the reasons stated in Judge Manion’s partial dissent, 799 F. 3d 633, 663–676 (2015), the Department’s interpretation is not only at odds with the regulatory scheme but also defies ordinary English. More broadly, by deferring to an agen- cy’s litigating position under the guise of Seminole Rock, courts force regulated entities like petitioner here to “di- vine the agency’s interpretations in advance,” lest they “be held liable when the agency announces its interpretations for the first time” in litigation. Christopher, supra, at ___ (slip op., at 14). By enabling an agency to enact “vague rules” and then to invoke Seminole Rock to “do what it pleases” in later litigation, the agency (with the judicial branch as its co-conspirator) “frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.” Talk America, Inc., supra, at 69 (Scalia, J., concurring).

Something tells me a Justice Garland would not agree with Justice Scalia on Auer.

National Review has published my piece on House of Representative v. Burwell. The bulk of the piece focuses on the Court’s meticulous analysis of the underlying statutory issue. Simply stated, the government does not have a leg to stand on because there is no appropriation for 1402 subsidies. Here, I’d like to flag my discussion of standing, and perhaps suggest to others that conservative’s long-standing preference for rigorous standing rules may warrant a second look for separation-of-powers challenges.

Here are the highlights:

Time and again, the Obama administration has modified, delayed, and suspended the law through unprecedented executive actions. The government’s most frequent defense is denial: Because no one is injured by their actions, no one has “standing” to challenge the actions in federal court. However, once forced to defend its policies, the government’s specious arguments quickly crumble.

…

In 2014, the House of Representatives filed a lawsuit alleging that the executive branch spent money without a congressional appropriation. The government’s first line of defense was to argue that the House lacked standing, because it was not injured. But the administration steadfastly refused to address how HHS was spending money that Congress chose not to appropriate. During a hearing last year, Judge Rosemary Collyer expressed her frustration with the government’s unwillingness to justify its actions. She chided the Justice Department lawyer, “You can’t just shake your head and say no, no, I don’t have to answer that question.” When he bobbed and weaved, Collyer charged: “This is the problem I have with your brief: It’s not direct. It’s just not direct. You have to address the argument that [the House] makes and you haven’t.”

In September 2015, the court found that the House was injured, and had standing to sue. Judge Collyer wrote that the “constitutional trespass alleged in this case would inflict a concrete, particular harm upon the House for which it has standing to seek redress in this Court.”

…

Conservatives have long advocated for a rigorous standing doctrine as a means to prevent “activist” courts from interfering with the democratic process. Indeed, Justice Antonin Scalia viewed standing as “a crucial and inseparable element of the separation of powers.” He wrote that making it harder for plaintiffs to bring constitutional challenges in federal court would reduce the “overjudicialization of the processes of self-governance.” The late justice’s approach is sound in theory, but risky in fact. In recent years, rather than protecting the separation of powers, the standing doctrine has served to insulate ambitious presidents as they run amok across what James Madison referred to as “parchment barriers.”

Judge Collyer’s decision to grant the House of Representatives standing has exposed an illegal expenditure of billions of dollars, without even the pretense of an appropriation. Relatedly, the Fifth Circuit’s decision to grant the state of Texas standing to challenge President Obama’s immigration actions has shined a light on an unprecedented act of executive lawmaking. Cramped standing doctrines would allow these abuses of presidential power continue without any scrutiny. Government lawyers can simply walk into court, and shake their heads no. When the president is willing to spend money without Congress’s permission, or rewrite laws when Congress refuses to, the traditional political process has collapsed. The courts must force the executive branch to explain its actions, and abide within its broad — but constrained — sphere of power.

Later in his tenure, Justice Scalia may have started to reconsider his once-strict views on standing doctrine as it relates to the separation of powers. In National Labor Relations Board v. Noel Canning, the Court unanimously invalidated President Obama’s illegal recess appointments. Justice Scalia concurred in judgment, but his opinion read more like a dissent. He lamented that the Court squandered a rare opportunity where parties had standing to raise a separation-of-powers challenge. “It is not every day,” Scalia wrote, “that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions.” He urged the Court to “take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment.” Judges should think twice about looking askance at abuses of the rule of law before sticking their head in the sands of standing doctrine.

I think this case, as well as U.S. v. Texas, should offer a moment of pause where we can reconsider our standing doctrine.