The Supreme Court's Libertarian Wing Squares The Corner

Justices Gorsuch, Thomas, and Barrett won't "endow the Executive Branch with maximum bureaucratic flexibility."

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Today, the Supreme Court decided Niz-Chavez v. Garland. The Court held that the government must provide an immigrant with notice of removal in a single document, rather than in multiple documents. The Court split 6-3. Justice Gorsuch wrote the majority opinion, joined by Justices Thomas, Barrett, and the Kagan three. Justice Kavanaugh dissented, joined by the Chief Justice and Justice Alito. There was a spirited discussion about statutory interpretation between Justices Gorsuch and Kavanaugh. It reminds me of Bostock. Justice Gorsuch's fixation on the placement of a quotation mark–which Justice Kavanaugh refers to as the "quotation mark theory"–reminds me of the song Take a Break from Hamilton. Is it "My dearest Angelica" or "My dearest, Angelica"?

There are many ways to explain this split. One possible axis concerns the Court's libertarian wing. Justice Gorsuch alludes to this impulse: the government should not get a free pass to play fast-and-loose with procedural guarantees. He writes:

Perhaps, though, what's really going on here has nothing to do with labels like that. Perhaps there's a simpler explanation. Perhaps when Congress adopted IIRIRA everyone understood that it required a single fully compliant document to trigger the stop-time rule. Perhaps the government has resisted the law's demands only because they leave its officials with less flexibility than they once had. Regardless, when interpreting this or any statute, we do not aim for "literal" interpretations, but neither do we seek to indulge efforts to endow the Executive Branch with maximum bureaucratic flexibility. We simply seek the law's ordinary meaning. 

Dare I say that Justice Gorsuch read the statutory scheme with a presumption of liberty? If one reading makes it harder for the government to harm people, and the other reading makes it easier for the government to harm people, then the former reading should be preferred. Here, the court would not give the government "maximum bureaucratic flexibility."

Justice Gorsuch makes this point more directly in the concluding section of the opinion:

At one level, today's dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. 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, it cannot be too much to expect the government to turn square corners when it deals with them.

The government should not get a free pass to deprive people of their rights. And the last emphasized sentence should ring a bell. Chief Justice Roberts used the exact same passage in DHS v. Regents:

Justice Holmes famously wrote that "[m]en must turn square corners when they deal with the Government." Rock Island, A. & L. R. Co. v. United States , 254 U.S. 141, 143, 41 S.Ct. 55, 65 L.Ed. 188 (1920). But it is also true, particularly when so much is at stake, that "the Government should turn square corners in dealing with the people." St. Regis Paper Co. v. United States , 368 U.S. 208, 229, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This  is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.

What is going on with Justice Gorsuch here? Is he trolling the Chief? Rather than citing Holmes, Black, and Roberts, Gorsuch–as he is wont to do–cites no one. There is some shade being thrown here. And the Kagan three have to go along for the ride.

In any event, the libertarian wing of the Court's six "conservative" members have squared the corner. And I'm glad to see Justice Barrett in this triad. We will likely see these three vote together again.

One final note. Justice Gorsuch in the majority rules for the immigrant, and calls him an "alien." Justice Sotomayor, who has objected to using this phrase before, swallows her pride and joins the majority opinion without dissent. Justice Kavanaugh, who ruled against the immigrant, once again uses the phrase "noncitizen." Justice Alito, who has objected to this neologism, joins the dissent without complaint. Go figure.

NEXT: Court Notes Possible Lack of Diversity of Citizenship in Marc Rotenberg v. Politico LLC

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  1. “Is it “My dearest Angelica” or “My dearest, Angelica”?”

    Depends on how many Angelica’s you have.

    1. How many Angelica’s what?

    2. In the interest of squaring grammatical corners, it depends on how many ANGELAS you have.

    3. That is my interpretation as well

  2. “One final note. Justice Gorsuch in the majority rules for the immigrant, and calls him an “alien.” Justice Sotomayor, who has objected to using this phrase before, swallows her pride and joins the majority opinion without dissent. Justice Kavanaugh, who ruled against the immigrant, once again uses the phrase “noncitizen.” Justice Alito, who has objected to this neologism, joins the dissent without complaint. Go figure.”

    Perhaps some (or most, or all) Justices perceive their current condition to be temporary. Some might be biding their time, awaiting change. Others might be attempting to delay change. That background might diminish concerns about transient alliances or particular choices of words.

    1. What is an illiberal, totalitarian, Ivy miseducated, parasite to make of this?

  3. Yeah, I’m sorry, this opinion is dumb. The case turned on whether a notice can be multiple documents or a single document.

    Why can’t “a” notice be multiple documents? I take a class, I get “a” grade. That grade is an amalgamation of multiple grades. “A” notice need not be one document.

    Also, suppose an immigrant asked for clarification or something. Could the alien then claim, hey, multiple documents, stop time? Because that is somewhat ridiculous.

    Like I am relatively pro-immigrant but … 1. I am not sure if this opinion is pro-immigant, they won on a stupid technicality, and 2. from experience, I mean, the immigration process is a nightmare. I was born here but I have relatives who often come … its not fun, its messy, so many dumb things …

    And yet some guy gets mailed two documents instead of one, even though everyone who read the statute before the case thought that was fine … and thats the problem? Oh boy if that reaches the level of supreme court review I have a number of actual legitimate gripes and contradictions in the law for you …

    Its just like … come on man. A self contradictory months long process is totally fine, but two documents, the horror! Really? Yeah I’m being somewhat cynical, but still.

    1. Why can’t “a” notice be multiple documents? I take a class, I get “a” grade. That grade is an amalgamation of multiple grades. “A” notice need not be one document.

      it can be multiple documents….it just has to be delivered at the same time.

      And quite honestly, this is the exact same standard the government demands of citizens. You have to submit everyhting at once, not piecemeal. If all the required stuff isnt filled out, you gotta re-apply.

      Whether the requirement is silly or not can be debated, but the fact of the matter is that the government should absolutely be held to the same standard they hold the citizens to.

      The government doesn’t get to simply follow the spirit of the law because real world logistical problem while demanding that the citizenry has to follow the letter of the law regardless of any real world logistical problems.

    2. And yet some guy gets mailed two documents instead of one, even though everyone who read the statute before the case thought that was fine … and thats the problem?

      It’s not the number of artifacts in a mailing….its’ the number of mailings. They can’t send you some of the info today, then send the rest at some point in the future.

      Just like I can’t send in my passport applicatoin, then a week later go and send expired passport or any other docs as I acquire them. It’s on me to make sure I have all the required info and send it to them at once.

      Why shouldn’t the government have to do the same? Why do they get to send info in waves and then it becomes incumbent on me to have to keep track of the info and know when I have received everything?!?

      Both sides should be held to the same standard

    3. Why can’t “a” notice be multiple documents?

      Because the notice is statutorily defined as something that contains certain specific information.

      I take a class, I get “a” grade. That grade is an amalgamation of multiple grades. “A” notice need not be one document.

      No, a grade is a singular thing. If someone said, “What grade did you get in Sociology 101?”, the answer is “B+,” not “A-, B, B-, B+, and B.” Just like if someone said, “What grade did you get on the quiz?”, the answer is not “Correct, correct, incorrect, half off, correct.” It’s 70%. 

      Also, suppose an immigrant asked for clarification or something. Could the alien then claim, hey, multiple documents, stop time? Because that is somewhat ridiculous.

      No, the alien could not then claim that. Once he gets the notice, getting a second document that clarifies (or changes) the notice does not retroactively alter the fact that he got the notice.

      It’s ultimately not going to be a very significant decision, to be sure — unlike its predecessor, when the government claimed that as soon as one got a piece of paper with the word “notice” up top it counted as a notice even though it didn’t have the information required by statute.

  4. “Court’s libertarian wing”

    One person is not a wing.

    Thomas and Barret are not “libertarians”, thank God.

  5. The most senior justice in the majority assigns the opinion. In this case, that was Clarence Thomas. When is the last time he was in a position to make the assignment?

    I’m not being snarky. I’m genuinely curious.

    1. If I’m understanding your question correctly, looks like it was Uzuegbunam v. Preczewsk, decided March 8.

  6. the libertarian wing of the Court’s six “conservative” members

    Let’s clarify: libertarian is not conservative.

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