Wednesday, April 18, 2018

Gorsuch A Mess

Yesterday the US Supreme Court handed down a 5-4 decision in Dimaya v. Sessions, a case involving Trump's deportation orders of immigrants that commit certain crimes.  The headline is that the court's newest Justice, Neil Gorsuch, sided with Justice Kagan and the court's liberals as the deciding vote.

In a 5-to-4 decision Tuesday, the court overturned the deportation of a 25-year legal U.S. resident from the Philippines who was convicted of two burglaries.

James Dimaya came to the U.S. at age 13 as a legal permanent resident. More than two decades later — after he was convicted of two home burglaries in California and sentenced to a total of four years in prison — the government sought his deportation under a "violent crime" immigration law, though neither of Dimaya's crimes involved violence. The statute defines a violent crime as one involving force or the "substantial risk" of force.

The Supreme Court, however, said that language is so vague that it invites arbitrary and discriminatory enforcement.

Writing for the court majority, Justice Elena Kagan said the ruling is compelled by the court's decision in a similar case, Johnson v. United States — a decision written by the late conservative Justice Antonin Scalia in 2015, a year before his death.

Pointing to that decision and others like it, Kagan quoted Scalia from a dissent on the subject of following these precedents: "Insanity is doing the same thing over and over again, but expecting different results."

"We abandoned that lunatic practice" the last time the court ruled on this issue, Kagan said, adding that there is "no reason to start it again."

Trump appointee Neil Gorsuch, Scalia's successor, cast the fifth and decisive vote, along with four liberal justices. In a lengthy concurring opinion, he said the "Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it."

But as Think Progress's Ian Millhiser points out, Gorsuch isn't "pulling a Scalia" here and siding with the liberals out of a libertarian impulse, he's actually pulling a Clarence Thomas with intent to cripple government regulatory power.

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.

In other words, Gorsuch is all but signaling to the world that he's to the right of Scalia, something I think that's going to be made abundantly clear as we head closer to decisions in the biggest SCOTUS cases this term in June.

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