Gorsuch is dead wrong on immigration

Daniel Horowitz · April 18, 2018
Gorsuch is dead wrong on immigration
Andrew Harrer/Bloomberg | Getty Images

The “but Gorsuch…” rallying cry for voting GOP is starting to run out of gas as the judiciary gets worse and worse and even “our” appointees find some convoluted reason to go along with the left-wing judicial supremacists who make a mockery of the will of the people.

In case you thought courts granting new rights to criminal aliens was a pastime only of the left-wing judges on the Ninth Circuit, think again. Yesterday, Neil Gorsuch joined with the four most extreme-left justices to rule that an entire statute of Congress mandating deportation for criminal aliens convicted of a crime of violence is “unconstitutionally vague.” While many conservative commentators defending and even championing his opinion are focusing on the regulatory aspect of Gorsuch’s rationale as it applies to general criminal law, they fail to observe that this is truly unprecedented and divorced from our entire history of immigration jurisprudence on deportations.

The case, Sessions v. Dimaya, was about a foreign national who was convicted twice of burglary and was ordered to be deported by the Obama administration. The Ninth Circuit stepped in and said the clause of the law used to deport him was unconstitutional, because it is evidently unconstitutional to enforce our own immigration laws unless we spell out every possible crime in the statute so that foreign nationals know the entire laundry list of crimes for which they can be deported. A right to know! (More on the background here)

The Supreme Court score was tied at 4-4, as even Anthony Kennedy agreed that we have a sovereign right to deport anyone pursuant to statute. By definition, a deportation statute cannot be unconstitutional unless the individual is a citizen. This was the quintessential case that was reheard so that Gorsuch could hear the case and cast his vote. Surprise! He was the deciding vote for the other side.

Deportation is different from criminal punishment of citizens

During oral arguments, I posted an article warning about Gorsuch’s line of questioning and why he was wrong to treat immigration like any other area of criminal law requiring a robust level of due process and prospective enumeration of the exact crime. Gorsuch’s entire argument misses the point that immigration is different altogether. No foreign national has the right to remain here against the will of the political branches. Gorsuch dealt with this point in only one sentence when he acknowledged the president’s power over immigration, but charged that “to acknowledge that the president has broad authority to act in this general area supplies no justification for allowing judges to give content to an impermissibly vague law.”

This is a very disturbing line of argument. Gorsuch is suggesting that it is automatically the court’s job to control the permissibility of a deportation. In reality, courts have no authority to block deportations unless a statute explicitly allows someone to stay. In this case, no sane person could have thought that committing two burglaries wouldn’t risk the criminal’s immigration status. Indeed, not a single judge ever thought to mess with this statute for decades. Similar statutes have been on the books since colonial times. Yet Gorsuch has the hubris to throw out the plenary power doctrine on immigration without even addressing it. “This Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.”

What is even more disconcerting and broadly consequential is that Gorsuch conflates deportation with a criminal penalty. Even if Gorsuch were correct about addig a strict “fair notice standard” into the due process clause and even broadly applying it to foreign nationals, he fails to acknowledge that an uninterrupted stream of settled case law deems deportation as an extension of sovereignty, not a criminal punishment. Sure, we can’t indefinitely detain (without intent to deport) even an illegal alien without due process, but we can say goodbye to any illegal or legal immigrant we don’t want.

James Iredell, one of the authors of Article III of the Constitution and a founding member of the Supreme Court, addressed this principle in 1799:

“[A]ny alien coming to this country must or ought to know, that this being an independent nation, it has all the rights concerning the removal of aliens which belong by the law of nations to any other; that while he remains in the country in the character of an alien, he can claim no other privilege than such as an alien is entitled to, and consequently, whatever [risk] he may incur in that capacity is incurred voluntarily, with the hope that in due time by his unexceptionable conduct, he may become a citizen of the United States.”

As a side note, Iredell wrote in a 1787 letter that any law “should be unconstitutional beyond dispute before it is pronounced such.”

The court settled this point long ago in Fong Yue Ting v. United States (1893): “[Deportation] is but a method of enforcing the return to his own country of an alien who has not complied with [statutory] conditions. … He has not, therefore, been deprived of life, liberty, or property without due process of law.”

As Clarence Thomas mentioned in his dissent, none other than judicial strongman John Marshall wrote in an address to the Virginia state legislature that “the right of remain­ing in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawn” without judicial review.

The grave consequences of a majority opinion on super-due process for deportations

For years, leftists have been trying to apply due process plus their accumulation of fake due process to deportations of foreign nationals, yet they couldn’t even get their doctrine past the Warren court. Now Gorsuch has completely adopted their dangerously consequential doctrine. In a footnote, Gorsuch completely undermines 120 years of case law by saying decisions explicitly kicking the courts out of immigrations somehow grant them power to retroactively create extra due process for deportations. The only “right to be heard” that an alien has is the right to present his case before some executive official if he can prove he is a citizen or is wrongly accused.

Scalia, who in general did not like vague statutes, would be appalled at granting such rights to aliens. He was a strong believer in sovereignty and the plenary power doctrine. In his famous Zadvydas v. Davis dissent, he wrote categorically, “Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right.”

Scalia made fun of the majority opinion that “obscured” the distinction between deportation and criminal punishment in “legal fog” to somehow suggest aliens have rights to remain in the country. The court used similar case law that merely prevented the government from throwing an alien in a labor camp without a judicial trial. “I am sure they cannot be tortured, as well–but neither prohibition has anything to do with their right to be released into the United States,” scoffed Scalia.

The consequences of Gorsuch’s conflation of deportation with a criminal penalty are grave and sweeping. This will not only be used for criminal alien crime cases, which alone will open the door for thousands of terrible criminals to stay in this country. It will be used to grant rights even to illegal aliens. Gorsuch is reading case law on due process for aliens as a right to judicial review, not just an executive hearing, and he is applying it to deportation instead of only to indefinite detention.

The tens of thousands of truculent immigration lawyers will now litigate every single deportation to death. Section 212 of the INA gives broad authority to the executive branch to keep out those who are determined to be drug users. Are we now going to question such determinations?

What else do immigrants have the right to know before we can deport them? District and appellate judges are already granting a right to advanced notice of deadlines of asylum applications and mandating that illegal alien teenagers be told of their “right” to an abortion.

Gorsuch cleverly uses a left-wing trick of creating a surreptitious, yet broadly consequential new right, but couches it as a narrow textual reading that can easily be remedied by a new law. “It’s important to note the narrowness of our decision today,” declared a disingenuous Gorsuch. Yup, very narrow, inverting the fundamental relationship between the sovereign citizen and a foreign national.

This is not originalism

The reality is that broadly delegated authority to the executive, while undesirable to conservatives in almost every domestic policy governing citizens, is highly appropriate and rooted in our history for keeping out undesired immigrants. Congress wants the executive branch to keep out bad guys. We can debate about certain reckless driving habits, but there is no ambiguity about burglars.

Even as the courts were redefining life, marriage, and civil rights throughout the Warren era, they never dared touch the plenary power of the political branches over immigration. That firewall has been breached by radical Obama lower court judges and now by the judicial savior of the libertarian Right himself.

Gorsuch relies on Scalia’s non-immigration decision on vagueness doctrine in Johnson, but as it relates to our immigration jurisprudence and history, he’d be wise to heed Scalia’s own advice. Scalia noted in a speech shortly before he passed away that modern justices place their interpretation of abstract principles over “the lived experiences and customs” of the American people. Referring to long-standing American traditions, Scalia admonished his fellow jurists to approach those issues with the mindset that a jurist “does not judge them; he is judged by them.”


The most interesting stories aren’t told in the headlines. They’re in the FOOTNOTES!

Get Conservative Review’s daily roundup of the most interesting, underreported, and unconventional news. Sign up today!

* indicates required



Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.