Judge Gorsuch and the Future of Immigration Deference
The Stanford Law Review has a series of student essays analyzing Supreme Court nominee Judge Neil Gorsuch‘s decisions on the U.S. Court of Appeals for the Tenth Circuit. In Judge Gorsuch and the Future of Immigration Deference, Matthew Sellers begins:
“If the first couple of months of the Trump Administration are any guide, immigration will be front and center before the Supreme Court in coming terms. How a future Justice Gorsuch might rule on the thorny questions of administrative law, due process, and executive power that these cases raise will turn on how much deference he believes the judiciary owes to the political branches’ immigration decisions. The courts traditionally review the constitutionality of immigration action under a hyperdeferential standard—meaning that legislative classifications and exercises of discretion that would be patently unconstitutional in other contexts are perfectly permissible when it comes to noncitizens. And Congress limited the courts’ jurisdiction to questions of law, almost totally insulating factfinding and exercises of discretion. With a significant exception where he invalidated a retroactive Board of Immigration Appeals (BIA) rulemaking, Judge Gorsuch has embraced this arrangement and would likely continue to do so on the Court. This Essay considers two illustrative sets of his opinions: one on judicial review of immigration agency action and another on the interaction of immigration and criminal law.”
Sellers concludes:
“Judge Gorsuch’s approach to immigration cases, with the exception of [two] administrative law decisions . . . , closely tracks the judiciary’s traditional deference to the political branches on immigration. Precedent and statute both endorse this approach. But there are open questions about constitutional limits on Congress’s and the President’s powers—limits that President Trump seems determined to test. It remains to be seen whether Judge Gorsuch, if confirmed, would adhere to the position he laid out on the Tenth Circuit when he is inevitably called upon to decide those cases.”
The entire set of essays touch on Judge Gorsuch’s decisions in these areas:
Fourth Amendment
Civil Rights Law
Antitrust Law
Free Exercise Clause
Sixth Amendment
Qualified Immunity
Textualism & Originalism
Establishment Clause
Administrative Law
Labor & Employment Law
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