Neil Gorsuch Makes the Case for a Judicial Power Grab

any person (public or private) exhibiting any animals which were purchased in commerce or the intended distribution of which affects commerce or will affect commerce to the public for compensation.

The statute mentioned “carnivals, circuses, and zoos” merely as examples, and explicitly exempted pet stores, county fairs, livestock shows, rodeos, pure-bred dog and cat shows—but not magic shows. Should the Agriculture Department have exempted small operators like Marty the Magician from its regulation? Yes, and eventually it didallowing exhibitors up to eight animals before the regulation kicked in. That happened after David Farenthold wrote up Marty’s plight in The Washington Post, and Fox News’s John Stossel interviewed Marty for a feature about “the war on the little guy,” and former Missouri Senator Claire McCaskill raised hell. But had the Agriculture Department imposed a size limit on exhibitors from the start, that would have departed from the statutewhich is precisely what anti-regulatory critics like Gorsuch identify as the administrative state’s besetting sin.

I might add that the regulatory burdens imposed on Marty before the Agriculture Department relented, although silly, were hardly overwhelming; the license fee, for example, was $40 annually. When I called Marty to check out Gorsuch’s story he told me he doesn’t perform anymore with his rabbit, but not because of regulations; rather, the rabbit is getting on in years (she’s 13).

Here’s an anecdote you won’t find in Gorsuch’s book: George Jarkesy, Jr., is a hedge fund manager and conservative talk-show host. He allegedly told brokers and investors that his funds were audited by KPMG and that their prime broker was Deutsche Bank. Neither was true, and the SEC nailed him for fraud. Jarkesy, who is worth perhaps a billion dollars, was required by the SEC to pay a fine of $300,000; to turn over an additional $685,000 in illegitimate revenue; and to absent himself from the securities industry for the remainder of his life.