This past week, the Supreme Court heard Sessions v. Dimaya, an immigration case which determined whether the government could deport immigrants convicted of “crimes of violence.” When the case was heard by the court in January 2017, there was a 4:4 judgement. Therefore, the court decided to re-hear the case once a new justice was appointed to fill the late Antonin Scalia’s seat on the bench. President Trump’s administration was confident that when they appointed conservative Neil Gorsuch to the bench, it would secure a conservative vote for decades to come. However, when Sessions v. Dimaya was reargued this past Tuesday, Gorsuch sided with the liberal judges of the court, breaking the tie in favor of Dimaya. Because of this decision, the Trump administration cannot deport as many people as it had wished to. Given Gorsuch’s decision, many are optimistic about future immigration decisions. However, many legal analysts advise people to take Gorsuch’s decision lightly, and they are right to do so. Although Gorsuch did vote in favor of Dimaya, it wasn’t because he believes in social justice for immigrants — far from it. Rather, Gorsuch voted in line with his belief in limited government power, which can be bad for liberal policies in the long run.
The case of Sessions v. Dimaya involves a Filipino immigrant, James Garcia Dimaya, who has lived in the United States as a legal permanent resident since 1992. In 2007 and 2009, Dimaya was convicted of two counts of firstdegree residential burglary. According to the Immigration Nationality Act (INA), any immigrant who is convicted of an aggravated felony which includes a “crime of violence” is deportable. Since Dimaya had two counts of burglary on his record, the Department of Homeland Security (DHS) decided to initiate deportation proceedings against him. Dimaya’s lawyers argued that the term “crimes of violence” was too vague and gave immigration courts too much discretion in deciding which crimes fall under that classification.
In the majority opinion for the court, Justice Kagan wrote that the statute did not provide a sufficient explanation for what constitutes a “crime of violence”; therefore, it gave courts too much discretion. She also pointed out that the court had already heard a case with similar facts, Johnson v. United States (2015), in which the classification of a violent crime was unconstitutionally vague and thus struck down. What makes this case especially interesting is the intersection of immigration law — which is technically civil law enforced under the executive branch — and criminal law — which is enforced through the judicial branch. Since immigration law is enforced by the executive branch, it receives little oversight from other branches of government. Therefore, it uses a lot of discretion in enforcement and policy making. Given the amount of unilateral power the executive branch has in immigration enforcement, it is unsurprising that Gorsuch voted the way he did. Instead of participating in the majority opinion, he decided to write a concurring opinion in which he agreed only in part with the majority. In this opinion, he said that he agreed with the vagueness of the statute; however, his reason for his vote had more to do with curtailing executive power than social justice for immigrants.
Gorsuch is known as a hardline conservative on many issues. He considers himself to be a strict constitutionalist, meaning he does not believe that the constitution is open to interpretation. Therefore, he interprets the constitution as the founders would have when they drafted it in 1789. For example, according to a popular legal blog, SCOTUSblog, Judge Gorsuch would vote 100 percent of the time with the most conservative justice, Clarence Thomas. In his previous opinions, he has opposed gay marriage and defended open carry as well as the use of public funds for religious schools. Given his voting record, it is clear that he is not interested in expanding rights for immigrants. Rather, he is more interested in keeping the federal government’s power limited. In the past he has voted to further damage these rights. For example, in a recent court case, Jennings v. Rodriguez, Gorsuch voted to allow the detention of immigrants indefinitely without the periodic bail hearings. Given that he voted to limit fifth amendment due process rights for immigrants, he is not concerned with their treatment in our crimmigration system—the intersections between criminal and immigration law. It is possible that he saw the indefinite detention as appropriate because it gave discretion to individual judges about whether or not to release detained immigrants on bail. This example proves that he is more concerned with limiting the power of the government than with immigrant rights.
In his concurring opinion, Gorsuch wrote, “vague laws invite arbitrary power.” He believes that the statute should outline exactly what is considered a crime, which is a view directly in line with his strict approach to constitutional interpretation. In my opinion, Gorsuch couldn’t care less about the conditions of immigrants. While his vote in this case was a victory for immigrant activists, I wouldn’t consider him an ally in the slightest.
