Here’s Why Gorsuch Joined Liberals To Strike Down A Deportation Statute

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Kevin Daley Supreme Court correspondent
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Justice Neil Gorsuch joined with the Supreme Court’s four liberals Tuesday to strike down a federal deportation statute as unconstitutionally vague.

Though the particulars of this case dictated a progressive result, the justice’s rationale emanates from conservative legal theories that, if applied, would dramatically circumscribe the growing power of federal bureaucrats.

At issue in Tuesday’s decision, Sessions v. Dimaya, was a provision of the Immigration and Nationality Act (INA) that sanctions the deportation of any non-citizen convicted of an aggravated felony. The statute includes a number of offenses that qualify as aggravated felonies and a catchall provision for any crime that “involves a substantial risk that physical force against the person or property of another may be used.”

Justice Elena Kagan’s opinion for the Court struck down the catchall provision, given its similarity to another statute the Court found unlawfully vague in 2015. President Donald Trump’s administration, like the Obama administration before it, attempted to distinguish the two laws by arguing the inquiry for vagueness should be different in each instance. The 2015 case involved a criminal law. The Court generally subjects allegedly vague criminal laws to a high degree of scrutiny. But the INA is a civil, not criminal, law. Civil laws are not considered vague unless they are “unintelligible.” Therefore, the Court’s review for vagueness in the INA should be shallow, the government argued.

Kagan rejected that argument, citing a 1951 case in which the justices decided to treat federal removal laws like criminal laws “‘in view of the grave nature of deportation,’ a ‘drastic measure,’ often amounting to lifelong ‘banishment or exile.'”

This is where Gorsuch departs from Kagan and the other liberal justices. In his own concurring opinion, the justice argued all civil laws — not just immigrant removal statutes — should be subject to a searching vagueness review. Vague laws, he writes, whether criminal or civil, “invite the exercise of arbitrary power.”

“The Constitution sought to preserve a common law tradition that usually aimed to ensure fair notice before any deprivation of life, liberty, or property could take place, whether under the banner of the criminal or the civil law,” he wrote.

He also rejected the argument that deportation provisions should be treated differently given the gravity of the proceedings. After all, other civil laws can be used to seize vast swaths of private property or license a business into bankruptcy. He wrote:

“If the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s ‘civil’ penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.”

Here, Gorsuch is making quite clear his belief that a bevy of economic, environmental and public health regulations should be exposed to vagueness challenges. Congress routinely enacts purposefully nonspecific laws, delegating rule-making and interpretative authority to federal agencies who give force to the broad, imprecise mandates of the legislature. Their domain is sweeping, encompassing the vast rangelands of the west, the telecommunications network, and the stock market, to cite but a few examples.

Since this sprawling network of agencies, sometimes styled the “administrative state,” enforces civil penalties jeopardizing liberty and property, the justice believes they, too, deserve serious vagueness scrutiny. The Dimaya case is the first Gorsuch has heard as a Supreme Court justice that forced this confrontation. As such, it happened to yield a liberal outcome. But his position, applied in many other civil contexts, is devastating to liberal priorities.

It is also a component of his broader anxieties about “creeping administrativism.” As a judge on the 10th U.S. Circuit Court of Appeals, Gorsuch wrote an opinion criticizing Chevron deference — a bedrock principle of agency law requiring courts to defer to a bureaucrat’s interpretation of law in most circumstances. As such, Tuesday’s opinion should be seen as the opening salvo of a campaign against agency power likely to last decades.

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