Actions of Associate Justice Neil Gorsuch Indicate Expansion of Judicial Engagement

By Elinor Aspegren (PZ ’20)

The United States Supreme Court case Sessions v. Dimaya made headlines on Tuesday, April 17 when Associate Justice Neil Gorsuch, a Trump nominee and noted conservative, sided with those more liberal in the decision that the Immigration and Nationality Act. This act defines a violent crime as eligibility for deportation, which is unconstitutionally vague under the Due Process Clause of the Fifth Amendment. In concurring, Gorsuch represents the growth of one kind of conservative thought, called judicial engagement, instead of judicial deference.

In 1992, when James Dimaya, a Philippine citizen, was 13, he became a permanent resident of the United States. In 2007 and 2009, he was convicted of residential burglary. The Department of Homeland Security argued that Dimaya  should be deported because he committed a violent crime.

Gorsuch concurred with the majority in a 5-to-4 decision and was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor . Justice Elena Kagan wrote that the law’s category, a crime of violence, is so indeterminate that deporting Dimaya under it would violate the Constitution’s due process of law guarantee.

The judicial power, Gorsuch wrote, does not license judges to make laws, but only to adhere to an existing law’s prescribed course. With the unclear crime of violence category, Congress abdicated its responsibilities for lawmaking.

Gorsuch’s concurrence can be attributed to the  “Chevron deference,” a principle he has regarded with skepticism. This policy, which was named for the case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. requires courts to defer to administrative agencies’ interpretations of ambiguous laws. Gorsuch has criticized this emancipation of the administrative state from judicial supervision as a restriction on judicial duty.

Many conservatives have advocated for broad judicial deference to decisions because they exists because of from ruling institutions and processes. Progressives favor such deference because it frees executive power from the other branches’ supervision. A defender of Chevron would argue that its rule is necessary for the government to solve modern problems. Congress can only ever act in fits and starts, and cannot engage in day-to-day technical judgments.

Gorsuch’s opinion points out that this idea essentially inverts the conventional view of the separation of powers. Nowhere does the Constitution indicate that federal judges are allowed to delegate that power to the executive branch. The system of checks and balances is what enables the judiciary to serve as an effective check s on the power of the other branches of government.

Essentially, Gorsuch is taking an originalist view, but on an issue that makes him progressive. Many experts have argued that this opinion will prevent judicial defence in the face of a Trump agenda.

To be sure, judges would still often rule the agency’s way, and many exercises of agency discretion would be difficult to contest in court at all. Still, reversing Chevron would help restore the proper role of judges in interpreting the law, and also curb abuses of power on behalf of the executive or Congress.

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