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George Will

Gorsuch strikes blow against administrative state

| Saturday, April 21, 2018, 9:00 p.m.

WASHINGTON

Last week, one week after the first anniversary of Neil Gorsuch's ascension to the Supreme Court, he delivered an opinion that was excellent as it pertained to the case at issue and momentous in its implications pertaining to the institutional tangle known as the administrative state.

If he can persuade his fellow court conservatives to see why they were mistaken in disagreeing with him, and if he can persuade his liberal colleagues to follow the logic of their decision with which he concurred, the judiciary will begin restoring constitutional equilibrium.

It will limit Congress' imprecise legislating that requires excessive unguided improvising by all those involved in seeing that the laws are “faithfully” executed.

In 1992, when James Dimaya, a Philippine citizen, was 13, he became a lawful permanent resident of the United States, where, unfortunately, his behavior has been less than lawful: In 2007 and 2009, he was convicted of residential burglary.

The Department of Homeland Security says he should be deported because he committed a “crime of violence,” hence covered by a portion of immigration law that, after listing specific crimes (rape, murder, etc.), adds a catch-all category of crimes involving “a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

How are judges supposed to apply this?

Writing for the majority in a 5-4 decision — and joined by Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor — Elena Kagan wrote: The law's category, a “crime of violence,” is so indeterminate (“fuzzy,” she said) that deporting Dimaya under it would violate the Constitution's “due process of law” guarantee.

Vague laws beget two evils that are related: They do not give citizens reasonably clear notice of what behavior is proscribed or prescribed.

And they give judges and law enforcement officials excessive discretion in improvising a fuzzy law's meaning.

In agreeing with this (and disagreeing with John Roberts, Anthony Kennedy, Clarence Thomas and Samuel Alito), Gorsuch wrote: Vague laws “invite the exercise of arbitrary power” by “leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.”

The lack of “precise and sufficient certainty” invites “more unpredictability and arbitrariness” than is constitutional.

Furthermore, the crux of America's constitutional architecture, the separation of powers, is implicated.

All legislative power is vested in Congress.

The judicial power, Gorsuch wrote, “does not license judges to craft new laws” but only to discern and follow an existing law's prescribed course.

Allowing vague laws would allow Congress “to hand off the job of lawmaking.” Hence such laws illegitimately transfer power to police and prosecutors.

Gorsuch represents the growing ascendency of one kind of conservative jurisprudence, “judicial engagement,” over another kind, “judicial deference.”

Many conservatives have advocated broad judicial deference to decisions because they emanate from majoritarian institutions and processes.

Progressives favor such deference because it liberates executive power from congressional direction or judicial supervision.

Gorsuch declines to be complicit in this, which raises this question: When has a progressive justice provided the fifth vote joining four conservative colleagues?

George F. Will is a columnist for Newsweek and The Washington Post.

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