Neil Gorsuch voted with the liberal justices, but his opinion should chill you to the bone

Broadly speaking, there are two different approaches to the law on the Supreme Court’s right flank.

Justice Samuel Alito is the consummate partisan. Unlike his other conservative colleagues, Alito has never cast the key fifth vote to throw a decision to the Court’s liberals. He’s also far more inclined to manipulate existing doctrines than to overrule them — claiming that longstanding doctrines actually require progressive laws to be read narrowly, even when such claims are the opposite of the truth. Alito tends to view each case in isolation. And, whenever possible, he presents the best arguments he can muster to gain a conservative result in each particular case.

At the other end of the spectrum is Justice Clarence Thomas. Less partisan and more ideological, Thomas is willing to push much further than Alito, and he has no compunctions about explicitly overruling major precedents. For example, under Thomas’ theory of the Constitution, child labor laws and the federal ban on whites-only lunch counters are unconstitutional. Unlike Alito, however, Thomas thinks in terms of broad principles rather than in terms of isolated efforts to move the law to the right. On rare occasions, this broader approach to the law places Thomas to the left of his fellow justices.

Which brings us to Tuesday’s decision in Sessions v. Dimaya, a 5-4 decision where Neil Gorsuch sided with the four liberals in favor of an immigrant convicted of burglary. Gorsuch’s vote, and his separate opinion in Dimaya, confirms that he is much more a Thomas than he is an Alito. He is willing to hand liberals a small victory on the path to a much larger effort to shift legal doctrines to the right.

The man who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it has not gone soft — even if he did hand a victory to an immigrant.

So, if you are writing about the Dimaya case, and want to give your readers an accurate picture of what Gorsuch is up to, please don’t do this:

Dimaya should have been a very easy case. Four years ago, the Supreme Court decided Johnson v. United States, which held that a federal law imposing stricter sentences on people who commit felonies that involve “conduct that presents a serious potential risk of physical injury to another” is unconstitutionally vague. Eight justices voted in the majority in Johnson (although two wrote separate opinions), and Justice Antonin Scalia wrote the majority opinion. This was not a close case.

Dimaya involves a strikingly similar statute to the one in Johnson. Under the law at issue in Tuesday’s decision, a non-citizen is all-but-certain to be deported if they commit a felony that “by its nature, involves a substantial risk that physical force against the person or property.” A bare majority of the Court — the four liberals plus Gorsuch — agreed that this law suffers from the same vagueness problems that plagued the law at issue in Johnson.

Though Justice Elena Kagan wrote the Court’s primary opinion, and Gorsuch joined enough of that opinion to form a majority for the proposition that the immigration statute is unconstitutionally vague, Gorsuch also wrote a separate opinion that provides a great deal of insight into how he views his role as a judge. Moreover, when read in light of Gorsuch’s prior record, his separate opinion in Dimaya suggests that he sees this case as one step in a broader anti-regulatory journey.

Hobbling federal agencies

Dimaya is not the first time Gorsuch has used an immigration case to make a broader statement against government regulation. As a federal appellate judge, Gorsuch wrote two opinions in Gutierrez-Brizuela v. Lynch, a case involving an immigrant who was unfairly jerked around by conflicting decisions by various government decision makers. In his first opinion, written on behalf of a three-judge panel, Gorsuch wrote a relatively narrow decision siding with the immigrant.

Then, in separate opinion joined by no other judge, Gorsuch launched into a rant against the Supreme Court’s decision in Chevron v. Natural Resources Defense Council

Chevron is one of the most important Supreme Court decisions of the last half-century. It provides that, when a federal agency pushes out a new regulation, and the statute which allegedly permits such a regulation is ambiguous, courts will typically defer to the agency’s reading of the statute unless that reading is outlandish.

Though Chevron was uncontroversial for several decades, it became one of the conservative Federalist Society’s most hated decisions during the Obama years — no doubt because Chevron required a judiciary controlled by Republicans to defer to environmental and labor regulators in a Democratic administration. Gorsuch’s critique of Chevron largely mirrors that of the Federalist Society — that Chevron places too much power in the executive branch and not enough in the legislature and judiciary.

The practical effect of a Supreme Court decision overruling Chevron would be to transfer power from whoever controls the presidency to a Republican-controlled judiciary.

Some of Gorsuch’s other writings, moreover, suggest that he may take an extraordinarily narrow view of Congress’ power to delegate regulatory authority to federal agencies. Gorsuch may even agree with Justice Thomas’ view that “generally applicable rules of private conduct” can only be created by an act of Congress.

Among other things, if Thomas’ view were ever to become law, much of America’s environmental law, which requires the EPA to continually update environmental standards as technology improves, would simply cease to exist.

With this broader agenda in mind, consider a key passage from Gorsuch’s opinion in Dimaya.

Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.”

Here, Gorsuch warns that vague statutes effectively “hand off the job of lawmaking” to prosecutors who enforce those statutes and, ultimately, to the judges who interpret them. But his criticism of vague laws largely tracks with Justice Thomas’ critique of agency regulation.

Modern regulatory regimes, where Congress enacts a broad standard and then allows agencies to update the details and new facts emerge and new technologies are developed, are inconsistent with Thomas’ view of the Constitution. In that view, any decision that “involves an exercise of policy discretion” must be enacted through “an exercise of legislative power.”

Most agency regulations, in Thomas’ view, “hand off the job of lawmaking” to the executive branch.

Gorsuch’s opinion in Dimaya, in other words, should not give even a moment of comfort to liberals. If anything, it should chill anyone who believes that a modern society must have robust labor and environmental regulation. Mr. Gorsuch does not outright endorse Thomas’ view of agency regulation, but Gorsuch’s opinion in Dimaya is another data point suggesting that he and Thomas have similar views on this subject. Gorsuch just chose to express his broader anti-regulatory view in a decision involving an immigrant.

Not Thomas

In fairness, it should be noted that Gorsuch tacks well to Thomas’ left on one important issue in Dimaya. In his own dissenting opinion, Thomas takes the rather extraordinary view that “I continue to harbor doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause.” Thomas would, at the very least, substantially weaken doctrines preventing individuals from being convicted of a crime based on vague laws that offer little clarity about what kind of activity is forbidden.

Gorsuch breaks with Thomas on this point — indeed, he spends about half of his opinion explaining why he is “persuaded instead that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.”

This disagreement suggests that, while Thomas is eager to overrule venerable doctrines that are inconsistent with a broadly conservative worldview, Gorsuch’s ideology is more libertarian. That means the two men are likely to vote together in labor and environmental cases — or even, potentially, in child labor cases — but that Gorsuch may be less inclined to burn down protections for criminal defendants and some immigrants.

But Gorsuch’s decision to vote with the liberals in Dimaya should not be read as a sign that he is more moderate than the consensus view suggested when Gorsuch was nominated for his current job. Indeed, if anything, Gorsuch’s opinion in Dimaya suggests that he is quite conservative indeed. He’s just willing to sweep a handful of immigrants and criminal defendants within a broader framework designed to hobble government.



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Author: Ian Millhiser

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