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!
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.
<snip>
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.â€
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.â€
What is even more disconcerting and broadly consequential is that Gorsuch conflates deportation with a criminal penalty. Even if Gorsuch were correct about adding 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.â€
https://www.conservativereview.com/articles/gorsuch-dead-wrong-immigration/
