“Gorsuch swings against Trump in deportation case.” So read the headline in Politico Tuesday, after the Supreme Court issued its decision declaring a subsection of federal immigration law to be unconstitutionally vague in Sessions v. Dimaya. The headline tells half of a story: While Justice Neil Gorsuch joined the Court decision against the Trump administration, his position reflected precisely the values that put him on the court in the first place.
While lawsuits challenging the Trump administration’s enforcement of immigration laws have been a hot-button issue—to say the least—the issue in Dimaya was extremely technical: namely, whether the term “a crime of violence,” as used in federal criminal law and incorporated by reference into federal laws requiring deportation, is so vague as to violate potential deportees’ constitutional right to due process of law. It’s an interesting issue, although hardly the stuff of front-page news … except that Justice Gorsuch sided with the court’s four liberal justices, and against the Trump administration.
Politico’s headline was hardly the only one to highlight the split. The New York Times announced, “Justice Gorsuch Joins Supreme Court’s Liberals to Strike Down Deportation Law.” USA Today announced, “Neil Gorsuch sides with liberals to tip decision to immigrant in Supreme Court deportation case.” Time announced, “Trump’s Supreme Court Pick Just Dealt the White House a Big Blow on Immigration.” And so on.
But the principles underlying Gorsuch’s opinion are largely what propelled him to a Supreme Court nomination in the first place.
James Dimaya, a Filipino immigrant, arrived in the United States in 1992. Since then he has been a lawful permanent resident, but not a law-abiding one: “Twice,” the court explains, “Dimaya was convicted of first-degree burglary under California law.”
And those 2007 and 2009 convictions spurred the Obama administration to bring a deportation action against him in 2010, pursuant to the federal statute empowering the attorney general to remove “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” The term “aggravated felony” is defined by another immigration statute to include, in a laundry list of possible crimes, “a crime of violence … for which the term of imprisonment at least one year.” And that statute’s term, “a crime of violence,” is defined by yet another statute (this time from federal criminal law) as, among other things, any “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.”
The italicized language at the end of that convoluted paragraph is key: The court was asked to decide whether the italicized language is so indeterminate as to be unconstitutionally vague.
In Dimaya, the court concluded that 8 U.S.C. §16(b), the criminal statute defining “crime of violence” in terms such that it “involves a substantial risk that physical force,” was such a statute. Quoting Scalia’s aforementioned 2015 opinion for the court striking down a similar statute, Justice Kagan’s majority opinion concluded that the statute “‘requires a court to picture the kind of conduct that the crime involves in “the ordinary case,” and to judge whether that abstraction presents’ some not-well-specified-yet-sufficiently-large degree of risk . . . The result is that §16(b) produces, just as [the statute in the 2015 case] did, ‘more unpredictability and arbitrariness than the Due Process Clause tolerates.”
To be clear, the majority’s analysis is hardly beyond reproach; Chief Justice Roberts’ dissenting opinion, which was joined by Justices Kennedy, Thomas, and Alito, explains at length why this statute is far less indeterminate than the one that the court struck down in 2015. The dissenters may well have had the better of the argument.
But no one familiar with Gorsuch’s record should be surprised to see him lean toward demanding greater specificity from Congress. He opens his Dimaya concurrence by invoking first principles—as in, principles of 1776:
And while vague laws raise questions of constitutional due process, Gorsuch further emphasizes that vague laws also raise questions of constitutional structure: “Although today’s vagueness doctrine owes much to the guarantee of fair notice embodied in the Due Process Clause, it would be a mistake to overlook the doctrine’s equal debt to the separation of powers.” The Constitution vests Congress with its enumerated “legislative Powers,” and it vests the courts with “the judicial Power.” And, Gorsuch adds, the courts must guard against the risk that members of Congress would “abdicate their responsibilities for setting the standards of the criminal law . . . by leaving to judges the power to decide the various crimes includable in [a] vague phrase”:
These are precisely the themes that Gorsuch invoked as a lower-court judge, in cases like Gutierrez-Brizuela v. Lynch (2016), De Niz Robles v. Lynch (2015), and U.S. v. Hinkley (2008), warning against the constitutional risks inherent in Congress’s eager delegation of power to the other branches of government—a line of judicial thought to which Judge Gorsuch has returned time and time again, as I wrote when Gorsuch was nominated.
As I noted then, Gorsuch occasionally invokes James Madison’s warning, in Federalist 62, that excessively “voluminous” or “incoherent” laws are a threat to liberty itself:
Of course, justices who dissented from the court’s decision in Dimaya and disagreed with Gorsuch’s opinion in that case are no slouches on questions of constitutional structure, either. Justice Thomas, for example, is the court’s most vociferous proponent for more energetic judicial enforcement of the “Nondelegation Doctrine” to strike down statutes vesting excessive power to agencies, as exemplified by his 2015 opinion in a regulatory case involving Amtrak; yet in Dimaya, Thomas dissented from the court’s decision. The split between Gorsuch, Thomas, and other conservatives on the court in Dimaya reminds us that even justices who might agree generally on the need to preserve the Constitution’s structure can disagree in individual cases.
But by the same token, the unusual alignment of Gorsuch with the court’s liberal justices should also remind us that a case’s outcome—or, more specifically, the partisan valence of the policy at issue in the case—can sometimes be a very poor proxy for the structural constitutional values at stake. Gorsuch’s invocation of themes critical of the modern administrative state, in an opinion supporting a decision against a generally deregulatory Trump administration, calls to my mind another recent opinion.
In the last decade, the Supreme Court opinion most significant for the future of “Chevron deference”—the increasingly controversial doctrine of judicial deference to agencies’ statutory interpretations—is Chief Justice Roberts’s opinion for the Court in King v. Burwell (2015), in which he led a six-justice majority to declare that courts should not give an agency Chevron deference on matters of “deep economic and political significance” that are “central” to the statutory framework at issue. This was the court’s most decisive cutback to Chevron since at least 2001 (or at least I contended upon its release, and still do), yet its importance in that respect was overlooked by many when the court issued its decision, due to the fact that Roberts’s decision ultimately affirmed the Obama administration’s legally dubious program for subsidizing health insurance purchased on Obamacare’s federal insurance exchanges. Roberts’s success in assembling a coalition of four liberal justices and Justice Kennedy around a strongly anti-Chevron decision was overshadowed (understandably) by the case’s bottom-line ruling in favor of the Obama administration’s policy. But King’s restrictions on Chevron may well prove to be much more consequential than the Obamacare subsidy regulation itself.
By the same token, after the political dust settles from the aourt’s decision in Dimaya, Gorsuch’s concurrence might be remembered less for its limited impact on immigration policy than for being one of Gorsuch’s first efforts as a justice to contribute to a judicial framework for much greater judicial skepticism of Congress’s eager delegations of power (and thus accountability) to the other branches of our federal government, and for much greater judicial willingness to play a more significant role in preserving the Constitution’s separation of legislative, judicial, and executive powers.
Only time will tell—but the next case to watch is not far away. Last month the court announced that it will hear Gundy v. U.S., a case that asks whether Congress’s enactment of the “Sex Offender Registration and Notification Act” unconstitutionally delegated too much power to the executive branch. The case will bring the justices’ attention back to the very same themes of constitutional structure that Justice Gorsuch raised emphatically in Dimaya.
