The Supreme Court handed down their opinion in Sessions v. Dimaya earlier today, a case that notably was reheard in oral arguments after Justice Antonin Scalia’s passing. Rumors circulated that the primary reason for rehearing was so that Justice Neil Gorsuch could cast a deciding vote in a 4-4 split. That rumor likely had merit, as the court rendered a 5-4 decision, with Gorsuch in the majority — with the liberal justices.
But before the narrative gets too far off track and conservatives start to worry that Gorsuch is “pulling a Roberts” and may continue to side with the liberals on all immigration issues, here is why that concern is a complete red herring: this case had nothing to do with illegal immigration politics.
The key factor here is that the defendant in this case is a lawful permanent resident, not an illegal immigrant. What due process means in the context of a permanent resident is substantially different constitutionally than a person here illegally because the United States has a legal status relationship with a permanent resident (and persons here with other types of legal status) that we do not with an illegal immigrant.
Permanent residents are in a completely different category within immigration law and constitutional law than illegal immigrants. This case was about the over-breadth of a vague law that, the defendant’s attorney successfully argued, failed to provide reasonable notice to a legal status holder of the potential penalties for certain crimes.
The opinion was not about drawing a distinction between illegal vs. legal status, but rather reached the merits of whether a provision of the Armed Career Criminal Act is narrow enough to provide reasonable notice (an area of due process) to persons subject to deportation or unconstitutionally vague. Anyone here with legal status cannot be deported without a sufficient qualifying basis, because the United States has agreed to allow the person to be here under those certain terms and conditions, thus due process is required. That’s what this case is about.
Think of it like a landlord-tenant, versus an uninvited guest. A landlord (the U.S.) allows some tenants (people with legal status) to reside on their land under the terms of the lease (a green card, visa, etc.). A landlord cannot evict a tenant without a breach of the lease conditions or other applicable law. But if an uninvited guest just shows up, the landlord doesn’t have to have an additional qualifying basis to kick out a guest. There is no legal status relationship that requires the landlord to go through the steps of eviction.
This case wasn’t about an uninvited guest. It was about the landlord-tenant relationship and whether the United States can commence eviction proceedings in the context of this particular law. Justice Gorsuch adhered to the Scalia line of reasoning, and provided correct constitutional analysis and thus correct constitutional outcome.
So to claim that this case is an indication that Gorsuch will side with the liberal cadre on all future immigration issues (particularly our uninvited guests) or forecasts a decision in favor of Deferred Action for Childhood Arrivals is simply premature. Illegal immigration is a completely different constitutional question. Especially given Gorsuch’s long line of 10th Circuit opinions that faithfully adhere to constitutional application without political consideration, we should continue to expect Justice Gorsuch to be the constitutional conservative (not political activist) that he is.
The optics may be spun to cast Gorsuch in a liberal light, but I continue to be impressed that Gorsuch cares far more about constitutional accuracy than anything else. He should — that’s his job.
Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is an attorney, a fellow at the Centennial Institute, a radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.
