Neil Gorsuch

Gorsuch Defends Illegal Immigrant's Rights, and Progressives Are Appalled

Neal Katyal says a ruling cited by the SCOTUS nominee's opponents shows why liberals should support him.

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C-SPAN

People for the American Way (PFAW) cites Gutierrez-Brizuela v. Lynch, a 2016 decision by the U.S. Court of Appeals for the 10th Circuit, as evidence that Neil Gorsuch is unfit for the Supreme Court. Meanwhile, in a New York Times op-ed piece, Neal Katyal, a solicitor general in the Obama administration, cites the same case as an illustration of "Why Liberals Should Back Neil Gorsuch." These diametrically opposed takes show why it is hazardous to view constitutional law as a battle between liberals and conservatives.

PFAW does not like Gorsuch's questioning of the Chevron doctrine, which says courts should defer to executive agencies' interpretations of ambiguous statutes, even to the point of reversing prior judicial interpretations. "Eliminating this principle…would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people," PFAW says. It neglects to mention that Gutierrez-Brizuela involved immigration law, and Gorsuch came down on the side of a longtime resident trying to legalize his presence in the United States. Sounds kinda liberal, no?

The decision dealt with an apparent conflict between two provisions of immigration law. One gives the attorney general "discretion to 'adjust the status' of those who have entered the country illegally and afford them lawful residency." The other "provides that certain persons who have entered this country illegally more than once are categorically prohibited from winning lawful residency…unless they first serve a ten-year waiting period outside our borders."

In 2005 the 10th Circuit ruled that the first provision supersedes the second, so even residents who have illegally entered the country more than once can still obtain legal status without waiting 10 years outside the United States. Two years later, the Board of Immigration Appeals (BIA), an administrative agency, decided the second provision limits the attorney general's discretion, meaning the waiting period is unavoidable. In a 2011 case, the 10th Circuit acceded to the BIA's interpretation, as required by the Chevron doctrine.

Last year's case involved an unauthorized immigrant, Hugo Rosario Gutierrez-Brizuela, who petitioned for a change of status before the new interpretation was adopted. In the majority opinion, Gorsuch noted that applying the new interpretation retroactively would not only violate the usual rules of statutory construction but raise "due process and equal protection concerns," since immigrants who had made decisions based on the previous interpretation would suddenly have the rug pulled out from beneath them:

After all, back in 2009 the law expressly gave Mr. Gutierrez-Brizuela two options: he could seek an adjustment of status…or accept a ten-year waiting period outside the country. Relying on binding circuit precedent, he chose the former path. Yet the BIA now seeks to apply a new law to block that path at a time when it's too late for Mr. Gutierrez-Brizuela to alter his conduct. Meaning that, if we allowed the BIA to apply Briones here, Mr. Gutierrez-Brizuela would lose the seven years he could've spent complying with the BIA's ten year waiting period and instead have to start that waiting period now. The due process concerns are obvious: when Mr. Gutierrez-Brizuela made his choice, he had no notice of the law the BIA now seeks to apply. And the equal protection problems are obvious too: if the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter.

Gorsuch also wrote a concurring opinion, and that is where he directly challenged the Chevron doctrine, which PFAW presumably would argue was unnecessary to resolve the issue of retroactivity. But in the concurring opinion Gorsuch emphasized that Chevron deference endangers liberty by weakening the separation of powers, under which Congress passes laws, the executive branch enforces them, and courts decide disputes about their meaning. "The founders considered the separation of powers a vital guard against governmental encroachment on the people's liberties, including all those later enumerated in the Bill of Rights," he wrote. "A government of diffused powers, they knew, is a government less capable of invading the liberties of the people." Giving one agency the power to interpret and rewrite the law as well as enforce it poses a clear threat to people at the agency's mercy, including highly vulnerable people like Gutierrez-Brizuela.

Here is how Katyal, who notes that he and Gorsuch "come from different sides of the political spectrum," describes the judge's position in Gutierrez-Brizuela and an earlier immigration case that addressed a similar issue:

Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants. In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch's interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers. When judges defer to the executive about the law's meaning, he wrote, they "are not fulfilling their duty to interpret the law." In strong terms, Judge Gorsuch called that a "problem for the judiciary" and "a problem for the people whose liberties may now be impaired" by "an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day." That reflects a deep conviction about the role of the judiciary in preserving the rule of law.

Critics of Gorsuch should not be taken seriously if they can't recognize (or refuse to acknowledge) the ways that "conservative" convictions can achieve liberal ends.

NEXT: Noontime Radio With Justin Amash, Damon Root, Jimmy Failla, and Tony Pierce

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  1. Why do I get the feeling that these groups would’ve been complaining if Trump had re-nominated Garland?

    1. You mean the people who had printed out signs saying “Oppose” with a blank white space for people to write-in the name of whoever Trump named so they could protest immediately after the announcement?

      Naw.

      1. Damn, that’s literally top picture on BBC news home page. Fuck, I thought you were exaggerating.

      2. Also signs of “Become Ungovernable”. Maybe we can reuse them?

        As libertarians, we should encourage such sentiments and remind progressives of it when people refuse to comply with federal regulations and refuse to leave federal lands under Democratic administrations.

        (They can keep the “No Fascism” signs however; those might as well say “I’m a communist”, unfounded accusations of fascism being their favorite propaganda tool.)

    2. It’s almost as though the principals are more important than the principles, innit.

      1. Yep. It’s not the nominee. It’s the guy doing the nominating.

        1. Something principals something principles.

          1. It’s something somethings all the way down.

            1. I’m always willing to something something all the way down.

              1. Mmmm hmmmm.

            2. It’s all the way downs all the way down

    3. Kind of like how McCain complained that they would stall for 4 years if Hillary became president?

      1. More like how you had a problem with that. The opposition party opposes. That’s their job and their right. Eight years ago such opposition was a sin, now it is holy.

  2. But in the concurring opinion Gorsuch emphasized that Chevron deference endangers liberty by weakening the separation of powers, under which Congress passes laws, the executive branch enforces them, and courts decide disputes about their meaning.

    Because checks and balances endanger big government achievement, and that’s why the Democrats must obstruct his confirmation at all cost.

  3. ‘Neal Katyal says a ruling cited by the SCOTUS nominee’s opponents shows why liberals should support him.’
    The battle lines are being drawn up, the ‘liberals’ are going for total opposition, does anyone think otherwise.

    1. The line in sand is the only play the left has. If Republicans vote to end the filibuster, the nanny-state wins because there would be less checks and balances in the Senate.

      Donation money is another key reason.

  4. “Eliminating this principle…would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people,”

    If those entities have been improperly vested with illegitimate authority by a Congress that wishes to wash its hands of potentially unpopular regulations, then it’s quite right they be rebuked by the judiciary and sent back to the legislature to clarify any ambiguities.

    1. If those entities are so experienced, they should have no trouble convincing a judge that they are right.

  5. “Eliminating this principle…would tie the hands of precisely those entities that Congress has recognized have the depth and experience to enforce critical laws, safeguard essential protections, and ensure the safety of the American people,” PFAW says.

    Group with Maoist-sounding name is really big on faceless, unrestrained bureaucracy arbitrarily deciding what the law means.

  6. Where are these mythical ‘liberals’ being spoken of? Does anyone have a body or something? Some bones? I’m not going to be fooled with fake photos like bigfoot or Nessie.

    1. Hey, my photo of Nessie is NOT fake. It might be out of focus and it may look like a stick at first glance, but it’s totally real.

      1. I will not dispute that it really is a photo.

  7. Assuming Gorsuch is sincere about not deferring to the executive, progressives should be cheering. They are scared about what Trump might do with executive power, after all.

    I’m more concerned with what Root wrote about last night regarding his views on unenumerated rights. He ought to be grilled on his view of the 10A.

    1. writing that the Due Process Clause had been stretched “beyond recognition” wrt right to privacy was indeed troubling.

    2. Gorsuch is also hostile to the concept of self-ownership, per Root’s article he opposes legal suicide, recreational drugs, prostitution, etc.

      1. Is there any indication that he would rule legalization of drugs or prostitution unconstitutional, though? Seems like that is more of a legislative issue.

        1. That is a good point. No, there is no track record on that, AFAIK. But he might get to rule on an executive order or an administrative determination about MJ.

    3. Assuming Gorsuch is sincere about not deferring to the executive, progressives should be cheering. They are scared about what Trump might do with executive power, after all.

      They’re playing the long game. They don’t want this guy (or any other SCOTUS justices like him) getting in the way once they get back in power. They’re willing to put up with Trump having the power in the short term because:

      1. They know that the media will actually do its fucking job and call attention to any abuses of power Trump does attempt, even if his abuses pale in comparison to the shit Obama pulled (which was ignored by the media) and
      2. While they’ll never admit it out loud, they know deep down that Trump isn’t going to be nearly as bad as they’ve made him out to be, at least in part because of number 1 above, but also because they know full well that while he’s certainly an authoritarian and an asshole, he’s no Hitler either.

      1. 1. They know that the media will actually do its fucking job and call attention to any abuses of power Trump does attempt

        And otherwise make them up by exaggerating or just inventing shit whole cloth…

        1. Well, yeah, that goes without saying. Which means when/ if Trump really does do something aweful no one will care. Did these assholes ever actually read “The Boy Who Cried Wolf?”

          1. But the point is, if you lie all the time, nobody’s going to believe you even when you’re telling the truth.
            Are you sure that’s the point, Doctor?
            Of course. What else could it be?
            That you should never tell the same lie twice.

    4. “Assuming Gorsuch is sincere about not deferring to the executive, progressives should be cheering. They are scared about what Trump might do with executive power, after all.”

      They’ve filled the regulatory agencies with supporters who are burrowed in deeply and protected by civil service laws. So for progressives, the more power these bureaucrats have, the better, regardless of which party holds the presidency or majority in congress.

  8. Critics of Gorsuch should not be taken seriously if they can’t recognize (or refuse to acknowledge) the ways that “conservative” convictions can achieve liberal ends.

    Liberals should be very interested in preserving a constitutional order that prizes rule of law over administrative convenience. That’s the heart of conservatism and liberalism as properly understood. But modern liberals are interested in technocratic means to socialist ends.

    1. Umm, because modern liberals aren’t liberals, they’re leftists. There’s no liberal in leftist.

      1. Some of them still cite the dictionary definition of liberalism, though. Self-awareness, how does it work?

        1. Which dictionary? My subscription to Newspeak Today lapsed in the last economy.

          1. Pravda…

      2. I really should do more reading on the Burke/Locke debate, but I’m a little swayed by the idea that Locke’s conception of liberalism may in a very narrow sense still apply to modern progressives: his idea of man’s perfectibility at the hands of the scientific State is very much in line with the progressive mantra from eugenics onward. I mostly don’t use the word for modern lefties since they have become so enamored of government qua government rather than government as a necessary evil, but there’s a slender thread of utopianism linking them with Lockean liberalism.

        1. Damnit, that should be Burke/Paine, although Paine was emulating Locke.

          1. I was thinking, that would have been a very one-sided debate.

        2. There’s an awful lot of Hobbes in progressives, too, and Hobbes was pre-liberal.

          1. Which makes sense, since they’re so into Calvinball.

          2. Rousseau also.

          3. True, though Hobbes was more pessimistic and viewed the state as a bulwark against the anarchy of the times he lived in. He was no utopian. The true intellectual grandfather of modern progressivism is Rousseau imo.

    2. That’s the heart of conservatism and liberalism as properly understood.

      US “liberals” aren’t liberals, they are progressives and social democrats.

      But then US “conservatives” generally aren’t conservatives, they are theocrats and nanny staters.

  9. It continues to perplex me how many people on the left, even in the Age of TrumpHitler, are willing to grant the executive branch more and more power.

    1. In my experience, if they try to justify it at all, they tie themselves in knots trying to explain the difference between whether the executive branch as an abstract concept should have that power and whether a specific real-world person who heads the executive branch should have that power. It’s almost as though they started with their emotions and tried to rationalize those.

      1. It’s almost as though they started with their emotions and tried to rationalize those.

        Almost?

    2. Actual liberals are either rare on the ground, or have gotten shouted at enough by SJW psychos to merge in with the silent majority. The Sinistrate is just a bunch of fucking commies, and they will kill us given half a chance. They have be driven out of polite society to hang out with the KKK and islamists and shit.

  10. Ya know, I’m starting to warm up to this Trump fellow.

  11. I kind of wish he had trolled everybody and nominated Obama at first. The Republicans would have blocked him and then he could forward Gorsuch, but such good times would have been had in the meantime.

  12. Didn’t Gay Jay say he wanted to nominate Souter-like SCOTUS justices?

    Gorsuch is the best thing to happen to libertarians in ages, yet would the LP party pick have nominated someone as good as him at defending liberty?

    If I’m going by The Jacket and his fellow writers I would argue no, but I know they aren’t the entire party.

  13. Progressives don’t even know what they’re angry about. They’re retards.

    1. Actually, I retract that. They do know what they are angry about. Not having power.

      1. With them, that’s always what comes first, second, and last…

      2. “Progress will now commence.”

  14. The NYT ‘analysis’ you mentioned this morning and other progressive reactions are revealing, and quite funny given Gorsuch’s insistence on respecting the judicial process over gaining political results. A lot of these people simply cannot judge a judge according to how the judge judges; they judge the judge by the judge’s impact on legislation. A judge is conservative if they tailor their reasoning to further politically conservative goals, or liberal if they pursue progressive goals. When Scalia or Thomas or Gorsuch rule in a way that seems to create a liberal or progressive outcome, it’s “surprising” or “curious,” or it makes them “less conservative.”

    But then a lot of these same people love the Notorious R.B.G enough to give her a ridiculous nickname like the Notorious R.B.G.

  15. My eyes kind of glazed over at the legalese in the post, but from what I can tell the progressives are going to be appalled that the nominee isn’t showering them with free rubbers and abortions anyway so OUTRAGE.

    1. Abortions for some, rubber showers for others!

    2. Showering with free used rubbers? I never understood the “sipping white tears” thing until just this moment.

    3. Of course the abortions are free. The anti-free market types around here won’t let us sell them.

  16. Who are PFAW and why should any libertarian care what they think?
    Jacob seems to think they are important and their concerns should be addressed but he never explains why.
    Are their concerns any more or less important than those of the KKK?

    1. It was actually founded by Norman Lear, the guy who created All in the Family. I had no idea they were still around, haven’t heard of them in at least 15 years.

  17. Feels > reals.

    1. We get signal.

      Main screen turn on.

      It’s [autistic screeching in Reason article]!

      All your posts are belong to us.

      Take off every shitpost.

      Move zig.

      1. You have no chance to survive [the Trumpocalypse]. Make your time.

        1. Somebody would have set us up the bomb, if not for the Wall(tm).

  18. his concurrence in the 2A case Rodriguez was not welcome.

    overall maybe he’s a net positive. maybe. i’m not convinced.

  19. Gorsuch Defends Illegal Immigrant’s Rights, and Progressives Are Appalled

    Not sure how “progressives are appalled.” I was expecting to see examples of progressives having a fit, but I’m not seeing it. Is People for the American Way (PFAW) a progressive organization? I’ve never heard of them. The headline doesn’t seem to match the story.

    I guess I could see how they might be pissed off or annoyed that this icky, gross conservative refuses to fit the stereotype of an immigrant hating bigot that their carefully constructed narrative says he should be, but still.

    1. As noted above, PFAW is Norman Lear’s creation; they’ve been around for a while.

      1. Just did a little google research on them. They are a progressive advocacy group. It’s just hard to tell based on the name (I could just as easily see a conservative group calling themselves that), and since I’d never heard of them, I wasn’t sure.

        I suspect their objection to Gorsuch is that they see him as a potential threat to their beloved bureaucracy of TOP. MEN. since he disagrees with the idea that the SCOTUS should defer to the Executive branch. You’d think they would want someone who may put the breaks on Trump’s administration, but as I said above, they’re probably playing the long game. They don’t want him around once they get back in power at some point in the future.

        1. Nothing so fancy.

          As was posted above, they are against him because they are not the once that have power, are not the once that nominated him, and finally because he isn’t a free shit guy.

  20. Frick, I mean to post the Root article doing a cursory overview and instead posted this article to my proggie friends. I have no faith that they’ll look past ‘Progressives are appalled’ and not read word one of paragraph one.

    1. I don’t link my proggie friends to reason That’s just asking for trouble.

      I do send a few links to my conservative friends though.

  21. “Critics of Gorsuch should not be taken seriously if they can’t recognize (or refuse to acknowledge) the ways that “conservative” convictions can achieve liberal ends.”

    Why the scare quotes around “conservative”? The administrative state is a prog idea, it’s an idea of which conservative have tended to be skeptical, even conservatives lite who otherwise babble about the “unitary executive.”

  22. I’m embarrassed to say it, but Trump is doing a lot of good things – this Supreme Court nominee looks decent, at this point. I’m surprised there was so little coverage (in both Reason and the mainstream media) of an extremely important executive order signed on Monday, requiring that for every one new regulation, two must be revoked. I didn’t read it, but it sends a strong signal to the bureaucratic octopus. No past presidents had the courage to do anything resembling that.

    1. Yeah, we’re familiar with that executive order, and while it’s good in theory it’s going to be hell to implement that. Say Commerce strikes down two regulations – does that mean that Commerce gets to make a new one or could that new regulation go to another agency (IOW some agencies could do all the revocation and other agencies could get all the new regulations). The agencies could game the system by eliminating two regulations and writing a single new regulation which includes everything from the previous two regs, plus adding some additional restrictions, etc.

      I’d rather see a line-item budget veto. Or see Congress de-fund some programs and offices within the agencies, perhaps even eliminate a couple of agencies.

    2. Why should they have to enact a new rule to get rid of all rules? I saw that EO and shook my head. It reeks of a scam. Adding and subtracting regulations is not a true measure meaningful reform.

      1. Should read – “to get rid of old rules”

  23. Wait, what? An article at Reason said “illegal” instead of “undocumented”? Someone slipped!

    1. Someone did an oopsie!

  24. Maybe he’ll help reign in certain outrageously deferential interpretations of the Controlled Substance Act?

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  27. Wait, PFAW is mad at Gorsuch because he wants to limit the power of the Executive Branch? Do they not realize who is running the Executive Branch?

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  31. Jacob seems to think they are important. iOS 10 Cydia Tweaks , their concerns should be addressed but he never explains why. how to use ifunbox

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