I've often said, and I still believe, that there
will be times when taking the truly conservative route will anger enough because in the case of a particular law under purview the net result would prove to fly against a particular preference. Gorsuch in his concurrence (he didn't write for the majority)
took the properly conservative route and argued against the continuance of a bad law or badly-written law.
The principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through
many practices of the administrative state, which translates often vague congressional sentiments into binding rules, a practice
indistinguishable from legislating. Gorsuch’s principle is also pertinent to something pernicious concerning which he has hitherto
expressed wholesome skepticism: “Chevron deference.â€
This is the policy (named for the 1984 case in which the Supreme Court propounded it) whereby courts are required to defer to
administrative agencies’ interpretations of “ambiguous†laws when the interpretations are “reasonable.†Gorsuch has criticized this
emancipation of the administrative state from judicial supervision as “a judge-made doctrine for the abdication of judicial duty.†It
also is an incentive for slovenly lawmaking by a Congress too lazy or risk-averse to be precise in making policy choices, and so
lacking in institutional pride that it complacently sloughs off its Article I powers onto Article II entities. Gorsuch wants Article III
courts to circumscribe this disreputable behavior.
Gorsuch represents the growing ascendency of one kind of conservative jurisprudence, “judicial engagement,†over another kind,
“judicial deference.†Many conservatives have embraced populism where it least belongs, in judicial reasoning. They have advocated
broad judicial deference to decisions because they emanate from majoritarian institutions and processes. Progressives favor such
deference because it liberates executive power from congressional direction or judicial supervision. Gorsuch, a thinking person’s
conservative, declines to be complicit in this . . .
---George F. Will.
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.
---Justice Gorsuch, in his concurring opinion, Sessions v. Dimaya.
