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Where will Gorsuch come down on immigration?


Friday, April 21, 2017

Days after his inauguration, the president nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to fill the Supreme Court vacancy left by Justice Antonin Scalia’s death last February. Now that he’s been confirmed, Gorsuch will likely maintain the Court’s conservative bent in most matters. Immigration, however, may be a different story.
 
At first blush, Justice Gorsuch appears to have much in common with Justice Scalia’s jurisprudence. His record shows that he rejects judicial activism and maintains a strong adherence to the founding fathers’ original intent. Under the current administration, strict constitutionalism could actually favor immigration.
 
While his own immigration opinions have neither been strongly for nor against immigrant rights, Justice Gorsuch – unlike Justice Scalia – has been a harsh critic of Chevron deference. This refers to the amount of deference court’s are supposed to give to federal agencies’ legal interpretations. Under Chevron, courts are limited in the roles they play when reviewing an agency’s specialized interpretation of a law. Justice Scalia was a hardliner when it came to supporting such deference.
 
Justice Gorsuch, on the other hand, has criticized Chevron on a number of occasions, asserting that federal judges ought to be the final interpreters of federal law. In a recent  instance, Guitierrez-Brizuela v. Lynch (10th Cir. 2016), the Board of Immigration Appeals had, for all intents and purposes, attempted to overrule the Tenth Circuit’s interpretation of an immigration law. Citing Chevron, the BIA claimed that court’s had to give deference to the agency interpretation.
 
In his concurring opinion, then-Judge Gorsuch criticized the administrative law principles the agency had utilized, noting that, 
 
“When the political branches disagree with a judicial interpretation of existing law, the Constitution prescribes the appropriate remedial process. It’s called legislation.” (Guitierrez-Brizuela, Gorsuch, conc. at 5)
 
Perhaps more telling is Justice Gorsuch’s view of attempts by the executive branch to dictate law:
 
“Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.” (Id. at 8)
 
Just days after his nomination, Justice Gorsuch was confronted with this very issue when the Ninth Circuit Court of Appeals declared the  president’s travel ban to be unconstitutional. The president was quick to criticize the judges involved, referring to the lower court as a “so-called judge” and calling the Ninth Circuit proceedings “disgraceful” and “so political.”
The New York Times reported that then-Judge Gorsuch called the president’s criticism of the judiciary “demoralizing” and “disheartening.” 
 
In light of an administration that seems determined to rule by fiat when it comes by immigration, Judge Gorsuch’s strict adherence to the rule of law and constitutional principles could bode well for immigration. The only question is whether Justice Gorsuch can continue to maintain his judicial independence in the face of the person who nominated him to the Supreme Court.


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