Supreme Court Justice Neil Gorsuch voted with the liberals on the court to strike down a portion of the Immigration and Nationality Act on Tuesday. At issue was the portion of the act that allowed the federal government to deport illegal and legal immigrants that had been convicted of an “aggravated felony.”
The provision lists several convictions that could be considered an “aggravated felony.” A conviction for any one of these would qualify an immigrant for deportation. The Supreme Court ruling specifically centered on a conviction for a “crime of violence.” The statute defines a “crime of violence” as an offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
It was that portion of the law that was struck down by the Supreme Court today in a 5-4 ruling written by Justice Elena Kagan. Justices Ruth Bader Ginsberg, Stephen Breyer, and Sonia Sotomayor also joined with Kagan. Justice Kagan specifically cited the void-for-vagueness doctrine in issuing the ruling.
The case before the court involved James Garcia Dimaya, a legal permanent resident who had immigrated to the United States when he was 13 years old.
Dimaya had been convicted of residential burglary in 2007 and 2009, however, neither crime involved any sort of violence. The Obama administration had sought to deport Dimaya after determining in 2010 that both crimes could have involved violence. The Board of Immigration Appeals agreed that Dimaya’s convictions made him subject to mandatory deportation.
The 9th Circuit Court of Appeals, however, ruled that the definition of “aggravated felony,” which included the definition of a “crime of violence,” was unconstitutionally vague. Dimaya’s deportation was blocked while the Justice Department appealed to the Supreme Court.
Dimaya’s case had actually come before the Supreme Court last year, but the court had deadlocked at 4-4 after Justice Antonin Scalia’s death. Justice Gorsuch, a strict Originalist, had provided today’s tie-breaking vote.
Justice Gorsuch explained why he was forced to vote with the liberal wing of the Supreme Court in his concurrence:
Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.
Conservatives who would move to condemn Justice Gorsuch for his decision would do well to note several things. First and foremost is the fact that Gorsuch has been a reliably conservative justice ever since he was appointed to the Supreme Court by President Trump. Gorsuch’s opinions have often found him siding with the extremely conservative Justices Clarence Thomas and Samuel Alito. Democrat Senator Dianne Feinstein has described Justice Gorsuch as “another Scalia,” and has said his early rulings showed zero signs from deviating from traditionally conservative positions.
Justice Gorsuch was one of three justices who fully supported President Trump’s much-maligned “Muslim travel ban.” This is perhaps the most prominent example of how Gorsuch’s conservative principles are influencing his work in the Supreme Court.
Secondly, anxious conservatives should look to the definition of Originalism itself. An originalist is someone who believes that the Constitution has meaning exactly how it was written by the Founders. The Constitution is not a living document that changes with the times as many liberals would say. The Constitution is an enduring document that means exactly what it says. To an Originalist, the words that were penned over 200 years ago embody timeless principles that can be used to guide the interpretation and application of the law no matter what day and age.
Neil Gorsuch has said that he would act as a “faithful servant” to “the greatest charter of human liberty the world has ever known.” These are not merely idle words to an Originalist. Gorsuch views the Constitution as the immutable, unbreakable law of the land in America. That much is evident in his concurrence with today’s ruling. Justice Gorsuch looked at the statute in question and how it related to the Constitution.
The Left and the Mainstream Media is going to attempt to spin this as a defeat for President Trump. “Gorsuch repudiated the Trump agenda” will be the mantra chanted in certain Leftist circles for the next few days. Why? Because Gorsuch sided with the Left and said that Trump isn’t allowed to deport immigrants. This is, of course, not at all the case. Today’s ruling doesn’t say that Trump can’t deport criminal immigrants, it simply demands more specificity in determining which crimes result in mandatory deportation. In fact, that is exactly what Justice Gorsuch said in his concurrence.
Conservatives that would worry about Gorsuch becoming another Anthony Kennedy and pulling an Obamacare switcheroo needn’t fret. Justice Gorsuch declared his intention to follow the letter of the Constitution early on in the confirmation process. His past rulings-and today’s ruling as well-have reflected that intention.
Justice Gorsuch looked at the definition of “crimes of violence,” compared it to how the Constitution was written by the Founders and found it wanting. Justice Gorsuch put the founding principles of this country before the squabbling of partisan politics.
Is that not what we as conservatives have always demanded of our Supreme Court justices?