There’s not much question that deporting immigrants committing serious crimes is a big part of the MAGA agenda, which treats crime as a problem of illegal immigrants swarming across the border. There is even less question that the very existence of “Supreme Court Justice Neil Gorsuch” is the crown jewel of the Trump presidency when it comes to redeeming his promises to conservatives — or is at least coequal with last year’s tax-cut bill as a great conservative achievement.
So what happens if the Trump message of maximum vigilance against Criminal Aliens comes into conflict with Trump’s all-time favorite judge? We may soon find out, perhaps from the president’s Twitter feed.
What happened is pretty straightforward: In the case of Sessions v. Dimaya, SCOTUS, by a 5-4 vote, held that a catchall provision of the Immigration and Nationality Act authorizing deportations for those guilty of a “violent crime” was unconstitutionally vague. The surprise (on the surface, anyway) was that Neil Gorsuch concurred with the Court’s liberal bloc (Justice Kagan, who wrote the majority opinion, along with Justices Ginsberg, Breyer, and Sotomayor), over the protests of the the Chief Justice (who wrote a dissent) and Justices Kennedy, Thomas (who wrote his own dissent dismissing the very idea of “void for vagueness”), and Alito. Even more remarkably, the liberal/Gorsuch coalition was upholding a decision by that Trump nemesis, the 9th Circuit Court of Appeals.
It all becomes significantly less mysterious when you understand that the main precedent cited by the SCOTUS majority and by the 9th Circuit was a 2015 opinion (Johnson v. United States) written by Gorsuch’s hero Antonin Scalia, which struck down a mandatory-minimum law with a similarly imprecise “violent crimes” provision. The idea that some statutes are “void for vagueness” is an important principle for the Scalia school of textual originalism. As Elie Mystal notes, it was a largely predictable approach for Gorsuch:
In Johnson, Scalia, writing for the majority, determined that the Armed Career Criminal Act’s use of the term “violent felony” was unconstitutionally vague. Gorsuch simply applied Scalia’s reasoning to Sessions v. Dimaya, and came to a similar result.
Gorsuch also agreed with the majority in holding that even when levied as a civil penalty, deportation is a sanction serious enough be treated as presupposing a clear standard of unlawful behavior. That could raise a few eyebrows as well in a Trump administration that is pretty avid to deport noncitizen immigrants whenever it’s possible.
The attempted deportation was also originally justified by the Obama administration; it’s not simply Trump versus the world. The provisions of the immigration laws, moreover, which specified crimes that might trigger deportation were not disturbed by the decision. And Congress can always “fix” vague statutes. So the decision isn’t quite the full-frontal defiance of Trump immigration policy you might imagine.
There are conservative undertones to Gorsuch’s position, since the attack on aggressive federal agency implementation of “vague” laws could be extended to a host of federal regulations that conservatives dislike, as Ian Millhiser explains:
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….
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.
If the president can keep his cool on this particular decision he will almost certainly be happy with Gorsuch’s general conduct on the Court, particularly when he’s doing exactly what Trump told him to do: act like Antonin Scalia.
