While the last few weeks have ratcheted up to an even higher level the swirling whirlpool that is the multiple news stories that emerge daily or even hourly from Washington, consider for just a moment Justice Gorsuch’s siding with the Supreme Court’s more liberal or outright liberal judges in Sessions v. Dimaya.

James Dimaya is a legal immigrant from the Philippines who arrived in America a few decades ago, and has since become a criminal. He’s been charged with a handful of burglaries and the issue at stake is whether Dimaya can be deported for having committed “crimes of violence.”

Surprisingly perhaps for the Trump administration, Justice Gorsuch agreed with Justices Ginsburg, Breyer, Sotomayor, and Kagan (who wrote the majority opinion). What the decision means is that the Supreme Court has struck down Section 16(b) of the Immigration and Nationality Act, because of the vagueness of the term “crimes of violence.”

In Breitbart of all places, Joel Pollak defends Gorsuch’s siding with the liberals, but Pollak bases his defense on what he views as Gorsuch’s originalist leanings. In other words, Justice Gorsuch’s decision was based on a deeply held suspicion of the broad net that was cast by the term, under which many acts could be considered violent and hence give the government the right to deport legal immigrants because their crimes were deemed a threat to society.

As Pollak details, Gorsuch’s opinion begins with the following words:

Vague laws invite arbitrary power. 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. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

How violent a criminal you have to be to have your legal status revoked is an important question to ask. It seems that Judge Gorsuch is worried that Congress has left it up to the courts, which means the prosecutors as much as the judges, to define what crimes are “crimes of violence.” And caution in the face of such prosecutorial power is warranted.

The problem is of course that this decision may very well at some point in the future be used to try and justify giving illegal immigrants who are also violent criminals 5th amendment rights. One would hardly be surprised if a Justice Kagan or Sotomayor took this position at some future date. Surely Gorsuch would never take such a position, but there is a flood of angry demands by immigration activists that seek to have anyone who makes it across the Rio Grande be as deserving of the Bill of Rights as a citizen of America. The White House surely feels that Gorsuch has chipped away at the legal barriers holding back such a flood.

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