A significant constitutional split has emerged between Supreme Court Justices Neil Gorsuch and Clarence Thomas over the meaning of the Due Process Clause.
The division emerged in Tuesday's Supreme Court ruling in Sessions v. Dimaya, in which the Court struck down a provision of the Immigration and Nationalities Act for being unconstitutionally vague. Justice Gorsuch concurred in Justice Elena Kagan's 5-4 opinion invalidating the provision.
Writing in dissent, Justice Thomas questioned whether the Supreme Court had any busines voiding this or any other statute on vagueness grounds. "I continue to doubt that our practice of striking down statues as unconstitutionally vague is consistent with the original meaning of the Due Process Clause," Thomas declared. In his view, "the modern vagueness doctrine, which claims the judicial power to 'strike down' vague legislation on its face, did not emerge until the turn of the 20th century."
Justice Gorsuch took the opposite view in his concurrence. The "void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution," he wrote.
For Gorsuch, the phrase "due process of law" should be read as imposing a key check on government overreach. "Vague laws invite arbitrary power," Gorsuch argued. "Before the Revolution, the crime of treason in English law was so capaciously 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. Today's vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving people in the dark about what the law demands and allowing prosecutors and courts to make it up."
One of the sharpest disagreements between Gorsuch and Thomas came over the question of whether the Due Process Clause, as originally understood, offers any protection for aliens facing deportation from U.S. soil by the federal government. Thomas seems to think that the clause offers no such protection. "Less than a decade after the ratification of the Bill of Rights," he observed in his Dimaya dissent, "the founding generation had an extensive debate about the relationship between the Constitution and federal removal statutes. In 1798, the Fifth Congress enacted the…Alien Friends Act, [which] gave the President unfettered discretion to expel any aliens 'he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government itself."
Gorsuch responded directly to this point with a forceful dismissal. "But the Alien Friends Act—better known as the 'Alien' part of the Alien and Sedition Acts—is one of the most notorious laws in our country's history," he wrote. "It was understood as a temporary war measure, not one that the legislature would endorse in a time of tranquility. Yet even then it was widely condemned as unconstitutional by Madison and others…. With this fuller view, it seems doubtful the Act tells us a great deal about aliens' due process rights at the founding."
This is not the first time that Gorsuch has butted heads with another right-leaning justice. As I've previously reported, Gorsuch and Justice Samuel Alito have clashed repeatedly this term during oral arguments over questions of privacy and the Fourth Amendment.