Ethics Hero: Justice Neil Gorsuch

The Supreme Court today struck down a law that allowed the government to deport legal immigrants who commit certain kinds of crimes, ruling that the law was unconstitutionally vague. The vote was 5 to 4, with Justice Neil Gorsuch voting with the court’s left-leaning block. The case was Sessions v. Dimaya, first argued in January 2017 before the  eight-member court left vulnerable to deadlocks by the death of Justice Antonin Scalia. And a deadlock it was,  4 to 4. The case was reargued last October after Justice Gorsuch’s confirmation again gave the Court a full contingent of nine.

The dispute concerned James Dimaya, a native of the Philippines who became a lawful permanent resident in 1992, when he was 13. In 2007 and 2009, he was convicted of residential burglary. The government sought to deport him under a law that made “aggravated felonies,” which the immigration law defined to include any offense “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,” justification for deportation.

In concurring with the majority opinion, authored by Justice Elena Kagan, Justice Gorsuch wrote that the law violated due process requirements by being unconstitutionally vague. “Vague laws,” he wrote, “invite arbitrary power.”

The interest here at Ethics Alarms isn’t whether the decision was right or wrong. It is that Gorsuch decided the case on the law and his view of it, not partisan loyalties, not knee-jerk cant, and not as a cog in a ideological block. In other words, he did what  judges, and especially Supreme Court Justices, are supposed to do, but which the news media, politicians, activists and those who neither understand nor respect the law always assume they don’t do: analyze each case according to the law and the facts, and decide without being influenced by political agendas.

Judge Gorsuch’s vote demonstrates his integrity, and speaks for the integrity of the entire Court and the judicial system. There were countless articles, when Gorsuch was nominated by President Trump, that represented him as an automatic reflex vote for whatever future results conservatives lusted for. This was an insult to Gorsuch, judges, the Court, and the United States.

You can read Gorsuch’s opinion here.

His main point is that when punishment as major as deportation is involved, a law should be clear and specific regarding what crimes by a legal resident immigrant mandate it. The law at issue is not clear regarding “residential burglary.” Gorsuch writes,

By any fair estimate, Congress has largely satisfied the procedural demand of fair notice even in the INA provision before us. The statute lists a number of specific crimes that can lead to a lawful resident’s removal—for example,murder, rape, and sexual abuse of a minor. 8 U. S. C. §1101(a)(43)(A). Our ruling today does not touch this list.We address only the statute’s “residual clause” where Congress ended its own list and asked us to begin writing our own. Just as Blackstone’s legislature passed a revised statute clarifying that “cattle” covers bulls and oxen, Congress remains free at any time to add more crimes to its list. It remains free, as well, to write a new residual clause that affords the fair notice lacking here. Congress might, for example, say that a conviction for any felony carrying a prison sentence of a specified length opens an alien to removal. Congress has done almost exactly this in other laws. …But those laws are not this law. And while the statute before us doesn’t rise to the level of threatening death for “pretended offences” of treason, no one should be surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it. A government of laws and not of men can never tolerate that arbitrary power. And, in my judgment, that foundational principle dictates today’s result.

Sounds good to me.

I’m still waiting for Justice Ginsberg to cast a deciding vote breaking ranks with her liberal colleagues.

Meanwhile, the mainstream news media have spun this as a meaningful rebuke to President Trump, and also used the dishonest conflation (of their design) of illegal immigration with legal immigration to mislead readers and give a brief jolt of joy to the those who welcome illegal immigrants but lack the diligence to actually read the Court’s opinions beyond the headline. I admit, I was fooled. We had The Post’s “Trump loses an immigration case – with Gorsuch as the deciding vote …,” Politico’s “Gorsuch swings against Trump in deportation case,” and The Hill’s “Trump pick Gorsuch casts deciding Supreme Court vote against deporting immigrant.” Since all of these outlets routinely use “immigrant” to mean “illegal immigrant,” these an other similar headlines suggest that Gorsuch’s vote is  a bigger deal than it is. President Trump’s prime targets have always been illegal immigrants, not legal ones, and Gorsuch’s vote has nothing to do with making it harder to deport them.


Source: New York Times

28 thoughts on “Ethics Hero: Justice Neil Gorsuch

  1. Good laws, fairly enforced and adjudicated are what we should expect from our government. Good for Gorsuch. Good for us.

  2. It’s interesting that people are seeing this as a rebuke of Trump, when it was actually Obama’s AG Loretta Lynch who was set to defend the law before she was replaced around the time of the 2016 election.

    Click to access 15-1498-pet-cert-reply.pdf

    This “loss”, if it can even be called that, was in a lot of ways a matter of dates. The portion of law being overturned preceded Trump, the deportation preceded Trump, the first few filings had Lynch’s name on them… A difference of a few months might have made this Lynch v. Dimaya as opposed to Sessions v. Dimaya. And I’m sure that the same people that are calling this a loss for Trump would be tripping over themselves to croon over how Obama had his ass handed to him. All that said, I doubt that Trump’s administration would have done much differently if Mr. Dimaya had waited until 2017 to go on his crime spree. It’s just that, as usual, people are getting way out over their skis on this. I’m not a legal scholar, but it seems like the kind of opinion I can get behind: Vagueness in law is never good.

      • Exactly, this a perfectly normal conservative thought on the subject. The disturbing part is the 4 ‘conservative’ justices who didn’t vote this way. Maybe they didn’t read all the way down the case. When I read an article on it, I didn’t see a problem with the initial ruling. It took until the 5th paragraph until I realized that the defendant was a LEGAL immigrant. Our press has perverted the language to the point that when I see ‘immigrant’ it immediately means ‘illegal alien’ to me.

  3. When a particular aspect of a particular law is found unconstitutional, is the entire law no longer enforceable or does it merely mean the law cannot be used in instances where the unconstitutional portion formerly had effect but the rest is otherwise still enforceable…?

      • Thanks. Are there any good resources that explain what happens to a law after any or all of it is declared “unconstitutional”? Or is wikipedia sufficient here?

        I think there is a subtle assumption in the culture (in instances where people do not know) that a declaration of unconstitutionality basically makes a law go away. But of course that cannot be the case…something is still in effect to some degree.

        • I’ll check. There was a lot of discussion of this when SCOTUS was examining the individual mandate, and whether it could just strike that component or whether the whole law had to go if it was voided.

    • The precedent established by Obamacare is that even if a severability clause was present in the bill’s legislative history and later removed, they can still act as though it’s there.

      I have no idea if this law had a severability clause, but I’d be inclined to say most of it is still in effect.

  4. So far, I’ve been impressed by Gorsuch, and this only bolsters that impression. To me, the surprising thing about this case is that they would let Kagan write a majority opinion.

    • Oh, Kagan’s one of the smartest on the Court, and of the three super-lib women, the only one I would expect to make a principled Gorsuch-like stand with the other “Block.”

  5. I meant to comment days ago on this, that I actually agreed with Gorsuch and the majority in this case; I don’t feel any less conservative or right-wing at all for it. I heard squeals of “traitor” against Gorsuch. Nope.

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