Thread: Gorsuch is dead wrong on immigration

Gorsuch is dead wrong on immigration



April 18, 2018

Daniel Horowitz




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! (More on the background here)



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.


Deportation is different from criminal punishment of citizens


During oral arguments, I posted an article warning about Gorsuch’s line of questioning and why he was wrong to treat immigration like any other area of criminal law requiring a robust level of due process and prospective enumeration of the exact crime. 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.”


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.”


What is even more disconcerting and broadly consequential is that Gorsuch conflates deportation with a criminal penalty. Even if Gorsuch were correct about addig 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.”

As a side note, Iredell wrote in a 1787 letter that any law “should be unconstitutional beyond dispute before it is pronounced such.”


The court settled this point long ago in Fong Yue Ting v. United States (1893): “[Deportation] is but a method of enforcing the return to his own country of an alien who has not complied with [statutory] conditions. … He has not, therefore, been deprived of life, liberty, or property without due process of law.”


As Clarence Thomas mentioned in his dissent, none other than judicial strongman John Marshall wrote in an address to the Virginia state legislature that “the right of remain*ing in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawn” without judicial review.


The grave consequences of a majority opinion on super-due process for deportations

For years, leftists have been trying to apply due process plus their accumulation of fake due process to deportations of foreign nationals, yet they couldn’t even get their doctrine past the Warren court. Now Gorsuch has completely adopted their dangerously consequential doctrine. In a footnote, Gorsuch completely undermines 120 years of case law by saying decisions explicitly kicking the courts out of immigrations somehow grant them power to retroactively create extra due process for deportations. The only “right to be heard” that an alien has is the right to present his case before some executive official if he can prove he is a citizen or is wrongly accused.


Scalia, who in general did not like vague statutes, would be appalled at granting such rights to aliens. He was a strong believer in sovereignty and the plenary power doctrine. In his famous Zadvydas v. Davis dissent, he wrote categorically, “Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right.”


Scalia made fun of the majority opinion that “obscured” the distinction between deportation and criminal punishment in “legal fog” to somehow suggest aliens have rights to remain in the country. The court used similar case law that merely prevented the government from throwing an alien in a labor camp without a judicial trial. “I am sure they cannot be tortured, as well–but neither prohibition has anything to do with their right to be released into the United States,” scoffed Scalia.


The consequences of Gorsuch’s conflation of deportation with a criminal penalty are grave and sweeping. This will not only be used for criminal alien crime cases, which alone will open the door for thousands of terrible criminals to stay in this country. It will be used to grant rights even to illegal aliens. Gorsuch is reading case law on due process for aliens as a right to judicial review, not just an executive hearing, and he is applying it to deportation instead of only to indefinite detention.


The tens of thousands of truculent immigration lawyers will now litigate every single deportation to death. Section 212 of the INA gives broad authority to the executive branch to keep out those who are determined to be drug users. Are we now going to question such determinations?

What else do immigrants have the right to know before we can deport them? District and appellate judges are already granting a right to advanced notice of deadlines of asylum applications and mandating that illegal alien teenagers be told of their “right” to an abortion.


Gorsuch cleverly uses a left-wing trick of creating a surreptitious, yet broadly consequential new right, but couches it as a narrow textual reading that can easily be remedied by a new law. “It’s important to note the narrowness of our decision today,” declared a disingenuous Gorsuch. Yup, very narrow, inverting the fundamental relationship between the sovereign citizen and a foreign national.


This is not originalism


The reality is that broadly delegated authority to the executive, while undesirable to conservatives in almost every domestic policy governing citizens, is highly appropriate and rooted in our history for keeping out undesired immigrants. Congress wants the executive branch to keep out bad guys. We can debate about certain reckless driving habits, but there is no ambiguity about burglars.


Even as the courts were redefining life, marriage, and civil rights throughout the Warren era, they never dared touch the plenary power of the political branches over immigration. That firewall has been breached by radical Obama lower court judges and now by the judicial savior of the libertarian Right himself.


Gorsuch relies on Scalia’s non-immigration decision on vagueness doctrine in Johnson, but as it relates to our immigration jurisprudence and history, he’d be wise to heed Scalia’s own advice. Scalia noted in a speech shortly before he passed away that modern justices place their interpretation of abstract principles over “the lived experiences and customs” of the American people. Referring to long-standing American traditions, Scalia admonished his fellow jurists to approach those issues with the mindset that a jurist “does not judge them; he is judged by them.”




https://www.conservativereview.com/a...g-immigration/

Related:

Exclusive — Former Immigration Judge on Gorsuch Ruling: ‘Very Dangerous Aliens’ Are ‘Not Going to Be Removable Because of This Decision’


https://www.alipac.us/f12/exclusive-%97-former-immigration-judge-gorsuch-ruling-%91very-dangerous-aliens%92-%91-357863/

Will Gorsuch join the bandwagon for judicial amnesty?

October 3, 2017

Daniel Horowitz

So far, Justice Neil Gorsuch has walked in the footsteps of the late Justice Antonin Scalia, but if yesterday’s oral arguments in an immigration case are any indication, he might be sharply departing from Scalia on national sovereignty and the role of the courts.

Forcing criminal aliens on the American public
America has become a dumping ground for criminal aliens, and now the courts, in a departure from 200 years of settled precedent, are making it hard to deport them on multiple fronts. Regular readers of CR are familiar with the slew of recent cases from the lower courts and the Supreme Court granting new rights to illegal aliens or criminal legal aliens to remain in the country against the decisions of the political branches of government, a phenomenon I referred to in my book as “Stolen Sovereignty.” Unfortunately, it appears that Neil Gorsuch might have caught the disease.

There were a number of disturbing cases of stolen sovereignty last term, in which Kennedy and Roberts joined the Left to invalidate deportations on numerous nuanced grounds. But one case where they held firm was Sessions v. Dimaya. The 4-4 deadlocked case resulted in a rehearing yesterday, now that the court has nine justices. While oral arguments are often not a valid indication of how the justices will rule, Gorsuch’s comments, in conjunction with things he has said in the past about due process for criminal aliens against deportation, raise some concerns. At the risk of angering many conservatives who regard Gorsuch as the greatest accomplishment of this presidency, I’d like to present the concern and why it matters so much.


Since our Founding, and even during colonial times, our government always made it clear it didn’t want criminal aliens. Our political leaders since our Founding understood that a free country will always risk violence from citizens. We are limited in what we can do to prevent every such act. That is why our early leaders made it clear that when it came to immigration, we would absolutely only bring in law-abiding people. This is why Congress has historically given the executive branch broad deference to enforce our sovereignty — our own political right to decide who enters our borders — but not to violate it.


Discretion in deporting criminal aliens

Our statutes require executive officials to deport anyone convicted of “an aggravated felony.” Immigration law defines an aggravated felony very broadly and open-ended, as a “crime of violence.” 18 U.S.C. §16(b) defines a “crime of violence” to include “any … 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 course of committing the offense.”

While most conservatives tend not to like broadly written statutes that leave executive officials with broad latitude to regulate the citizenry, immigration policy is different. Clearly, Congress, representing the will of the people, didn’t want criminal aliens in this country. After all, immigration is an elective policy, only for the betterment of the country as a whole. Thus, the default position should be that executive officials have the power to deport any convicted criminal alien unless statute explicitly says otherwise. This is where Neil Gorsuch appeared to side with the Left.

James Garcia Dimaya is a green-card holder from the Philippines who was convicted twice of burglary. Immigration judges concluded that his crimes fit the description of a “crime of violence” and ordered his deportation. The Ninth Circuit, however, applied a broad trend in the court system to invalidate “crime of violence” statutes as “unconstitutionally vague.” The Supreme Court already did this with statutes governing domestic criminals, leading to the re-opening of numerous criminal cases. That was a bad enough foray into a political issue that should be dealt with by Congress, not the courts. But the Ninth Circuit egregiously applied it to criminal aliens, who have no presumptive due process right to remain in the country.

To be clear, immigrants most certainly have due process rights in criminal investigations, but there is no presumptive right to remain in the country at all and prospectively avoid deportation unless executive officials are acting contrary to statute. This is the deference to “plenary power” of the political branches that has been strictly upheld since our Founding.


Gorsuch’s line of questioning

In a lengthy back-and-forth during oral arguments, Gorsuch kept expressing skepticism at Deputy Solicitor General Edwin Kneedler’s argument that the DOJ has broad authority to interpret a crime of violence. He asked how the court would know if the crime likely involves violence. “I would probably want to have statistics and evidentiary hearings and hear experts on that question,” Gorsuch said. “And that sounds to me a lot like what a legislative committee might do.” He snapped at the solicitor general, asserting, “You’re not asking the executive to define these crimes, you’re asking us to.”

This is simply astounding. Gorsuch is suggesting that the default position is that a criminal alien gets to stay in the country unless the court can determine beyond a shadow of a doubt that the crime is included in statute and that the statute is not “unconstitutionally vague.” He is suggesting that asking the Supreme Court to overturn the activist Ninth Circuit is somehow an act of legislative intervention.

What was most concerning is that Gorsuch conflated deportation with imprisonment — lumping them both together as deprivation of liberty and property. He spoke of a hypothetical person sitting in prison for six months who “wouldn’t trade places in the world for someone who is deported” and that the Constitution doesn’t draw a line between regular criminal cases and deportation with regards to the Fifth Amendment.
This ignores an uninterrupted stream of settled case law stating that deportation of aliens is not a punishment similar to domestic criminal punishments that require greater due process, because it is inherent in national sovereignty. I have previously chronicled a list of case law stating that outside of a procedural due process opportunity to present their cases to an administration official, aliens have no right of judicial review to block deportations; most certainly not to invalidate statutes.

Justice Robert Jackson, the great champion of due process and the dissenter in the Korematsu case, said that “due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will” (Shaughnessy v. Mezei, (1953). Scalia wrote in Zadvydas v. Davis that Mezei was still the precedent and that he found “no constitutional impediment to the discretion Congress gave to the Attorney General,” even for the purpose of detaining a criminal alien in the process of deporting him.
Kneedler properly summed up the argument as follows: “[I]mmigration removal is not a punishment for past conduct. It operates prospectively on the basis of the application of standards adopted by Congress under which an alien is regarded as no longer conducive to the — to welfare.”

Therefore, it’s not the job of the federal judiciary to second-guess immigration statutes or executive authority acting on the power of a statute. Let Congress deal with it if they decide the law is “vague.” But as it relates to immigration power, it’s not vague. It’s a broad license to protect America from undesirable immigrants, much like the ban on immigrants who’ve committed crimes of “moral turpitude,” as Justice Alito observed during the exchange.


The lower courts and Gorsuch’s position

This is even more concerning because of the growing trend in lower courts to “strike down” immigration laws or enforcement of laws based on their novel interpretations of statute. The lower courts are continuing to violate national sovereignty. Last week, a D.C. federal judge limited Trump’s immigration ban as it relates to winners of the diversity visa lottery. Meanwhile, as criminal aliens and illegals get full standing to sue against immigration law, the citizens of California and Judicial Watch were denied standing by the Supreme Court to sue California for violating federal immigration law and using their taxpayer funds for illegal aliens. Are we going to allow lower courts to rule the country?

Applying judicial review and “substantive” due process to criminal aliens on the question of their deportation has no place in the history of our jurisprudence and the plenary power doctrine. Scalia would be appalled at granting such rights to aliens. He was a strong believer in sovereignty and the plenary power doctrine. In his famous Zadvydas v. Davis dissent, he wrote categorically that “Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right.”
And yes, Congress has historically granted the executive branch broad latitude to defend sovereignty. As immigration historian Peter H. Schuck wrote in his scholarly book, Citizens, Strangers, and In-Betweens:

Congress has chosen to confer exceedingly broad discretion over the most far-reaching immigration decisions not merely to the executive branch, but to a cabinet official…In the face of broad, express congressional delegations of authority to the president in the area of external relations, judicial power is the most problematic and the President’s authority, in Justice Jackson’s words, “is at its maximum.” There, “[he may] be said to personify the federal sovereignty.”


Yet, once again, today the court is hearing a case, Jennings v. Rodriguez, where the Ninth Circuit has granted illegal aliens a right to bond hearings, even though they are the consummate flight risk. It never ends. Immigration and national sovereignty was the one issue that survived even the onslaught of the Warren Court. Not any more. The courts are now doing to immigration what they did to abortion and marriage. It would be a darn shame for Gorsuch to be the final nail in that coffin.

When considering tampering with immigration policy, Gorsuch should ponder Scalia’s admonition shortly before he passed away, “What Shakespeare is to high school students, a society’s long-established traditions are to the jurist. He does not judge them; he is judged by them.”


https://www.conservativereview.com/a...icial-amnesty/

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In the long history of the US Supreme Court, this third branch has never protected the rights of citizens above immigrants.