Surprised by Neil Gorsuch’s Ruling? You Weren’t Paying Attention.

Expect Gorsuch to be more solicitous of immigrants, criminals, and every other kind of litigant caught up in the administrative state.

April 17, 2018 • Commentary
This article appeared on the Washington Examiner on April 17, 2018.

According to many on the Left, Neil Gorsuch can do no right. Not only did he take a Supreme Court seat that rightfully belonged to Merrick Garland, but he’s an anti‐​little‐​guy grinch who can’t stop waxing historical and insisting on oh‐​so‐​clever legal interpretations that always seem to help some ur‐​Trumpian cause.

On the flip side, those on the populist right have been crowing about how President Trump put one over on the globalist elites by appointing a white guy with stellar credentials who knows where his MAGA bread is buttered and makes the splodey heads keep sploding.

Well, both camps must be scratching their heads — those that haven’t sploded — at Gorsuch’s deciding vote in Sessions v. Dimaya, the closely watched criminal immigration (“crimmigration”) case that was reargued this term after the short‐​handed Supreme Court split 4–4. The case asked whether a particular deportation statute was unconstitutionally vague. Gorsuch joined the four liberals in saying yes and thus allowing a twice‐​convicted green card‐​holder (not an illegal alien, as some Twitter lawyers reported) to stay in the country.

The law at issue provided that even a lawful permanent resident must be deported if he committed certain crimes, some that were specifically listed and the rest covered by a general “crime of violence,” defined as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” This is the latest in a series of cases involving the “void for vagueness” doctrine, meaning that prosecuting someone under a vague law — the legislature’s delegation of broad powers to prosecutors to determine “bad” conduct — violates due process rights.

Notably, in the 2015 case of Johnson v. United States, the Supreme Court threw out the very similar “residual clause” of the Armed Career Criminal Act, which enhanced someone’s sentence based on three prior “violent” felonies. The late Justice Antonin Scalia wrote that opinion for an eight‐​justice majority, noting his distrust of such laws because they allow “more unpredictability and arbitrariness than the Constitution allows.” It was Scalia’s last major opinion and a fitting capstone to a career spent expressing skepticism of unconstrained government power, often in ways that redounded to the benefit of criminal defendants.

So it’s altogether fitting that the man who replaced Scalia — who was billed by everyone from the president on down as continuing his legacy — to vote the way he did in Dimaya. Here’s how he begins his opinion:

Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up. The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door‐​to‐​door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

And note that this was a concurring opinion, because he disagrees with Justice Elena Kagan’s plurality that the law has to fall “because of the special gravity of its civil deportation penalty.” Plenty of laws have grave penalties, after all. “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”

None of this should be surprising. As I noted in these very pages just more than a year ago, Gorsuch is serious about the way in which constitutional design protects individual rights. That’s the whole point of features like the separation of powers, after all, which isn’t just some antiquated attempt to show how much James Madison learned at Princeton. Indeed, two of Gorsuch’s most‐​noted opinions in the 10th Circuit involved crimmigration, albeit in the context of executive branch power.

It’s in administrative law, by the way, where Gorsuch can be expected to go farther than Scalia in enforcing constitutional structure and pushing back on government overreach. As others have noted, he’s less beholden to deference doctrines and prefers greater judicial scrutiny of administrative action. So expect Gorsuch to be more solicitous of immigrants, criminals, and every other kind of litigant caught up in the administrative state.

It doesn’t make him a squish. It makes him an originalist.

About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute