Supreme Court

Gorsuch and Kavanaugh Butt Heads in Major Immigration Case

“Our only job today, is to give the law’s terms their ordinary meanings and, in that small way, ensure that the federal government does not exceed its statutory license.”


The U.S. Supreme Court ruled 6-3 last week in favor of an undocumented immigrant seeking discretionary relief from a federal deportation proceeding. Justice Neil Gorsuch, who wrote the majority opinion, rejected what he described as the federal government's attempt "to endow the Executive Branch with maximum bureaucratic flexibility." Justice Brett Kavanaugh, who wrote the dissent, attacked Gorsuch's judgment as "rather perplexing as a matter of statutory interpretation and common sense." Their war of words spilled out over many pages.

The case is Niz-Chavez v. Garland. According to federal immigration law, a nonpermanent resident subject to removal proceedings may seek relief from the attorney general, who has the discretionary authority to "cancel removal" and adjust immigration status if the alien in question has maintained 10 years of continuous physical presence in the U.S. The law further states that "any period…of continuous physical presence in the United States shall be deemed to end…when the alien is served a notice to appear." A "notice to appear" is defined by statute as a "written notice" and it must specify the "time or place of the proceedings."

Agusto Niz-Chavez received two documents from federal immigration authorities. The first one informed him of the charges against him. The second document, sent two months later, told him the time and place of his hearing. The question before the Supreme Court was whether those two documents together qualify as "a notice to appear" that stops the clock on Niz-Chavez's continuous physical presence in the country. Put differently, depending on when the physical presence clock is stopped, an immigrant might not even qualify for discretionary relief in such cases.

Justice Gorsuch, joined by Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett, held that the government's actions did not pass muster under the terms of federal immigration law. "To trigger the stop-time rule, the government must serve 'a' notice containing all the information Congress has specified," Gorsuch observed. "To an ordinary reader—both in 1996 and today—'a' notice would seem to suggest just that: 'a' single document containing the required information, not a mishmash of pieces with some assembly required."

As Gorsuch explained, this dispute was about something much bigger than a single word. "Words are how the law constrains power," he wrote. And "in this case, the law's terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government," Gorsuch declared, "it cannot be too much to expect the government to turn square corners when it deals with them."

Writing in dissent, Justice Kavanaugh, joined by Chief Justice John Roberts and Justice Samuel Alito, faulted Gorsuch for a nitpicky approach that "will impose substantial costs and burdens on the immigration system."

Gorsuch responded by criticizing Kavanaugh's dissent for offering a "raw consequentialist calculation" that "tried to predict how the government will react to a ruling that requires it to follow the law and then proceeds to assess the resulting 'costs' and 'benefits.'"

"Our only job today," Gorsuch maintained, "is to give the law's terms their ordinary meanings and, in that small way, ensure that the federal government does not exceed its statutory license. Interpreting the phrase 'a notice to appear' to require a single notice—rather than 2 or 20 documents—does just that."

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  1. “to endow the Executive Branch with maximum bureaucratic flexibility.”

    Ok, I think he just lost the Democrats.

    1. Let us see how the court shake out if this type of bureaucratic procedure dispute was over, say, a gun control law. Where do you think the liberal bloc of the SCOTUS would line up?

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      2. I’m guessing the same place that Alito, Kav, and Roberts end up… the opposite side.

  2. Awesome so Garland can just wave his hand and say it’s magic you can stay.

    About like how they plan to prosecute violent looters rioters and burners from last year.

    But the selfie takers in the capitol are the threat actors.

    1. High capacity assault fire extinguisher.

    2. So people where charged for taking selfies on Jan 6th at the Capital. Wow, you are correct that is a miscarriage of justice….

    3. Awesome so Garland can just wave his hand and say it’s magic you can stay.

      Not just Garland, and this isn’t some new power.

      All this decision does is direct the federal government to send 1 notice with all of the requisite information rather than several notices with bits of information that the recipient then needs to piece together.

      This decision is correct, and easy. The federal government should be required to be clear and concise when sending legal notice, and not force one to piecemeal together various notices.

    4. Literally no, that’s not what this case does at all. All the executive ever had to do is not pursue charges/deportation, that doesn’t change. You’re on the wrong side of this one if you want to restrict what an executive branch head like Garland can do.

      This is about whether or not executive deference extends to letting executive agencies dictate their own terms of notice, so the result is actually restrictive on the executive branch and thus makes it harder for, say, the EPA to declare your ditch a wetland and give you proper “notice” that doesn’t actually notify you.

    5. I see we’ve gone from they were just sit ins to selfies.

    6. The law gives him that discretion though.

  3. “Our only job today,” Gorsuch maintained, “is to give the law’s terms their ordinary meanings and, in that small way, ensure that the federal government does not exceed its statutory license.”

    Works for me. Hope he stays consistent.

    1. +

    2. Gorsuch is, above all, the lawyers friend. In this instance, document 1 stated that …required to appear at a hearing. Document 2 says … at this place, at this time. Gorsuch declares unlawful application of notice. Remember when another legal resident was subject to deportation for two “violent” felonies. Gorsuch said that the individual had no way of knowing if his burglaries were “violent” enough to get him deported. In the light of Gorsuch world view, everything could be much more clear and fair if it was more complex.

  4. “will impose substantial costs and burdens on the immigration system”

    Well obviously you have to have a balancing test on these sorts of things, if it costs the government too much they don’t have to adhere to the law. It’s like when you find out a bad cop has been regularly lying about shit for years and years and years, you just can’t go back and chuck a bunch of his convictions on the basis that his testimony in the case might have been tainted, that would open up the police department to multiple lawsuits for wrongful convictions and cost them tens of millions of dollars.

    1. But it is interesting that Roberts and Kavanaugh wound up on the same side in a minority opinion that said the government shouldn’t be held to a strict standard – almost as if, as some of us predicted, his stare decisis as lodestone bullshit would tend to make him a John Roberts Mini-Me.

    2. I don’t get Kavanaugh’s logic. If the end result of a gov’t failure to follow its own rule results in “substantial costs and burdens” then the gov’t doesn’t have to follow its own rule?

      1. As pointed out above, his opinion is very likely tainted by the subject at hand. It’s no surprise that some of the conservatives are against government not following the rules to the letter of the law on immigration, the same as we could reasonably expect the liberal justices to flip-flop on an issue like gun control.

        I’ve said it before and I’ll say it again… the rule of law is a myth. It’s absolutely tainted by the pre-conceptions of judges and will be forever. No human can be 100% consistent 100% of the time, especially when dealing with hot-button issues.

        1. Just because it is always going to fall short of perfection does not mean it is a myth. There is a difference between a system of common law and a totalitarian state, for instance. Even if the judges in the common law system are sometimes unfair or biased.

        2. Heck, I’d lock the border down tight, start systematic deportations of everybody found to be here illegally, (If they could prove they’d been law abiding otherwise I’d let them apply for legal admission at the end of the line. and *I* think this was the right ruling.

          Just because you’re an illegal immigration hardliner doesn’t mean you think it justifies an exception to the rule of law; The law says “a” notice, “a” notice is what the government must provide.

      2. Pretty much. The “costs and burdens” argument is basically a supreme court justices way of saying, “ya, buy I don’t wanna!”

  5. Useful case to see the cleavage fractures re ‘conservative’ judges.

  6. Too bad Gorsuch wasn’t around to apply this logic to King v. Burrell.

    1. Gorsuch continues to impress, for sure.

  7. I was against the Kavanaugh witch hunt, but this skit will never not be hilarious.

    1. So this is what people who watch SNL are willing to accept as “hilarious.”

      1. It’s no Gutfeld!, but it manages to get by with an audience of educated, modern Americans.

  8. “..faulted Gorsuch for a nitpicky approach that “will impose substantial costs and burdens on the immigration system.”

    Fuck them and the rest of the government, too. At what point does one decide that requiring the government to follow the law is just “too expensive” or troublesome? They sure as hell don’t care about the burdens they impose on us.

  9. So we’ve gone from “what the meaning of ‘is’ is” to “what the meaning of ‘a’ is”?

  10. Gorsuch is by far my favorite justice currently on the court. I find it mind-boggling how often many justices take into account political calculations rather than just what the law says.

  11. “Gorsuch and Kavanaugh Butt Heads”

    Yeah, yeah, you said it, huh-huh huh, huh-huh.

  12. will impose substantial costs and burdens on the immigration system
    Because it costs so much more to send one standard notice than it does two or three?

    Agusto Niz-Chavez received two documents … The first one informed him of the charges against him. The second document, sent two months later, told him the time and place of his hearing.
    Another problem is, when the “notice to appear” is spread across months, which document “stops the clock.”

    1. The case has to with immigration law, but it is not about immigration. It is about the executive following the law in a reasonable fashion. Immigrstion is a side issue.

    2. It’s not illogical to argue that this dude got all the information and the clock stopped once he got the second notice.

      But that leaves open the possibility that feds would send out the information in 10 different notices to 3 different addresses.

      Gorsuch’s solution is much better going forward. One document with all the relevant information in one place.

      1. It might not be illogical, but doesn’t matter, because that’s not what the law says they should do. It says “a” notice.

        If it had just said “notice”, you could argue about it. But “a” notice means “one” notice.

      2. All that was required to do it right was to copy and paste the first notice into the second notice – assuming the INS has updated its technology to 1990 or later. If that’s a “substantial burden”, the entire agency from top to bottom should be fired for incompetence and replaced.

  13. I like this kind of libertarianism. It’s modest.

    You can tell that the real conservatives, be they reserved like Roberts, deeply psychologically scarred like Thomas, or drunk like Kavanaugh. They just care about the state as a security blanket. As long as it’s keeping “them” out, it fits the small-government bullshit perfectly well.

    As we all know, the government is a force to restrain because of its power to commit violence against individuals. Thus, its only legitimate function shooting and caging undesirables.

    1. You just can’t stop with the racism, can you?

    2. Oh, and the ‘small government conservatives’ you’re decrying here? Several of them voted to allow the government more power.

      That’s what the whole ‘the government can ignore its own rules if its too burdensome’ part of the writeup is about.

      Not exactly ‘small government’.

      1. Nothing is small government. It’s not a thing. It’s a couple words that mean very little. Not even a Supreme Court justice is empowered to alter the percentage of GDP taken up by government, so none of them, conceptually, can even be small-government in that sense. Any such policy choice isn’t their job.

        People who believe the US constitution is a document that requires limited government? Fair enough, as it can be interpreted as a federalism-forward system, which I’m sure served the pre-industrial farmers who wrote it quite well—until the Civil War that happened shortly thereafter, caused by, and partially correcting, the same sort of lack of centralized authority that felled the Articles of Confederation.

        As for that kind of judge, what good are they? That conception of the United States died in a war that was fought over the right of states to enslave populations. It has never been motivated by anything good, and none of the “ideas” crapped all over this website does much to improve on that record.

    3. Agreed for once, the government should absolutely be caging and shooting Bolshevik scum.

  14. This is about whether or not executive deference extends to letting executive the agencies dictate their own terms of notice, so the result is actually restrictive on the executive branch and thus makes it harder for, say, the EPA to declare your ditch a wetland and give you proper “notice” that ,doesn’t actually notify you.

  15. No wonder we the American Citizens get screwed. Our Congress can’t make simple stay if Legal, remove if Illegal ASP instead friggen 10 years. God, 10 years here, no criminal record, give the person a Gift-Permanent Status towards Citizenship. What waste of Supreme Court time with a bunch of word games. What the hell are they trying to accomplish. Tell the Congress to rewrite the Law to the Supreme Courts review. Infact all Laws written should be scrutinized by the US Supreme Court before it becomes Law.

  16. US Constitution Article I, Section 8
    Congress hall have the Power ….. repel Invasions.

  17. Gorsuch is the best justice the court has had in a long time.

  18. Government power needs to be limited and held to a higher standard. Justice Gorsuch is correct and Justice Kavanaugh in wrong. To preserve rights of the individual, we must not allow government to have the benefit of the doubt. The benefit of the doubt should be with the individual and the higher requirements of proof must be imposed on the government.

    I do believe that a country has the rights to know who is immigrating to the country. I also believe that our government makes is unnecessarily difficult and expensive to immigrate to the country.

    From my perspective, neither the Republicans or the Democrat parties have any intention of reforming immigration to the country. Both parties are virtue signaling to their bases with zero intent of actually changing anything. Both parties use and promote the division to bolster their vote.

    The solution is to abandon the Democratic and Republican parties and vote for a third party that better matches your views. Be sure to vote to deny the major parties their artificial percentages where they claim a non-existent mandate. Demand an end to omnibus bills where congress piles on loads of pork in favor of small standalone bills that are focused on a single item

  19. The SCOTUS has no business hearing cases. Past cases regarding gun control as an example are never enforced. It is the US Congress’s job to deal with issues, not the SCOTUS. We don’t need legislators in robes passing laws.

  20. I know the MSM won’t popularize stories like this, but I really hope more Americans pay attention to these kinds of ideological divides in the SCOTUS. In this dark age of societal discourse, Gorsuch and Kavanaugh, two supposedly “conservative” justices appointed by the evil cheeto dorito inciter-in-brief Blonand “Two Scoops” Blumpf, are doing God’s work restoring faith in the rule of law (a major Trump tenet) by showing people for real that outside characterizations of the court are not accurate. These really are principled, ideological divides in the interpretation of law and the court can be trusted. Even if they make a mistake and get the call wrong, the process and system can be defended.

    All the more important since our puppet President is still threatening to pack the court.

  21. We shouldn’t be so “nitpicky” when reading a law? Particularly when it results in things I don’t like?

    This is hilarious.

  22. Gorsuch is just as bad as Roberts. All of Trumps picks are establishment constitution hating self serving power hungry globalists.

  23. A solid example of the reality at SCOTUS: while it is often 5-4 in high profile controversial cases, 90% of the time you find splits that do not fall along party lines, and the justices agree with each other more often than not.

    The perception that the Court always falls along party lines is one that should be corrected. The media could make this point, but I’m not holding my breath.

  24. “nuh-uh! Gorsuch and Kavanaugh are ALWAYS butt heads!”

    – Reason Leftists

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