Pollak: Gorsuch’s Ruling in Immigration Case is Solid Conservative Originalism
by Joel B. Pollak
17 Apr 2018

Conservatives can be expected to disagree reasonably over Justice Neil Gorsuch’s opinion Tuesday in Sessions v. Dimaya, in which he concurred with the Court’s liberals and cast the deciding vote in a 5-4 ruling invalidating an immigrant’s deportation.

But it is not reasonable to claim that Justice Gorsuch has somehow sold out his principles to become the next David Souter. His opinion in Dimaya is actually a conservative one, based on an originalist reading of the Constitution.

The majority held that Section 16(b) of the Immigration and Nationality Act is unconstitutionally vague. The law, as written, provides a legal basis for the deportation of a legal immigrant who is convicted of “crime of violence,” defined as “any other 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 the course of committing the offense.”

The legal immigrant in question has been convicted twice of first-degree burglary in California. But the Court held, following the precdent in Johnson v. United States (2015), that the idea of “substantial risk” of physical violence was just too vague. Congress simply had not provided a precise enough definition of a “crime of violence.” That meant that the Fifth Amendment due process rights of a legal immigrant convicted of a crime could be violated by deportation.

Gorsuch’s concurring opinion begins:

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Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

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In other words, Gorsuch is not concerned with the welfare of this immigrant or any other. Rather, he is concerned about the federal government potentially abusing its power by exploiting vague language in the law.

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http://www.breitbart.com/big-government/...ve-originalism/