By Joel Rosenblatt and Greg Stohr, Bloomberg News
A Mexican immigrant who twice entered the U.S. illegally has one man in particular to thank for being able to live and work in Oklahoma City with his family — Judge Neil M. Gorsuch.
Gorsuch, the nominee President Donald Trump is betting on to be his Supreme Court tie-breaker, wrote a 2016 ruling permitting Hugo Rosario Gutierrez-Brizuela to stay in the U.S. and, his lawyer hopes, within a few years become a citizen.
“Without it we were done,” said Timothy Cook, the attorney. Had the decision gone the other way, Gutierrez-Brizuela would have been promptly deported, he said.
As Trump vows to fight all the way to the nation’s top court to preserve his temporary ban on travel from six mostly Muslim nations and immigration agents turn to more aggressive tactics on city streets, Gorsuch’s conservative credentials have been hailed as likely to swing the divided court in the president’s favor.
But as lawmakers scrutinize Gorsuch’s decade-long tenure on a federal appeals court for clues about how he might rule on hot-button issues such as abortion and gun control, his record shows that on immigration rights, he can’t be easily categorized.
Moreover, some experts and academics say Gorsuch’s criticism of executive overreach in the Gutierrez-Brizuela case and others could lead him to reach decisions at odds with the Republican president’s policies. The judge’s thinking in those cases is likely to be a subject of intense interest in confirmation hearings set to begin Monday.
“There’s a little bit of me that’s hoping we’ll have the last laugh against Trump and the people who presented Gorsuch as though he’s in their pocket and going to rubber stamp the political and social agendas they want to promote,” said Laura Lichter, a Denver lawyer whose immigrant client won an appeal before Gorsuch in 2015. “I don’t see that.”
The American Immigration Council, which advocates for immigrant rights, said a review of the few relevant opinions Gorsuch has issued over the last decade shows that he has at times been sympathetic to victims of outdated and harsh immigration laws.
“His decisions are a bit of a mixed bag on immigration,” said Melissa Crow, legal director of the American Immigration Council. “He’s come down on both sides — in some cases in favor of the non-citizens involved, and at other times against, depending on the issue.”
In the cases argued by Cook and Lichter, Gorsuch blocked immigration officials from changing the rules mid-game. Both immigrants had sought residency under regulations that wouldn’t disqualify them for past missteps, but their applications wound up being retroactively reviewed under a stricter policy that required them to first serve a 10-year waiting period outside the U.S.
Gorsuch summed up that switch as “effectively pulling out from petitioners like Mr. Gutierrez-Brizeula a rug that the agency itself set under them.”
The judge’s answer was to let the new, stricter rule apply only going forward. To legal scholars, what stands out about the ruling is Gorsuch’s attack on what he called a “behemoth” Supreme Court legal precedent, a 1984 decision that upheld the Environmental Protection Agency’s interpretation of the Clean Air Act in favor of Chevron.
The Chevron doctrine holds that when a law is ambiguous, courts must defer to an expert agency’s interpretation so long as it’s reasonable.
In the case of Gutierrez-Brizuela and others in his shoes, the agency was the Board of Immigration Appeals, operating under the U.S. attorney general. Gorsuch concluded that relying on Chevron to apply the required waiting period retroactively may have violated constitutional guarantees of fairness and equal protection under the law.
“If the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter,” Gorsuch wrote.
Gorsuch actually wrote two opinions in the case. The first, speaking for the court as a whole, hewed to the principles of law set out in previous cases, as judges are required to do. He also wrote separately suggesting it was time to rethink the Chevron doctrine.
Eliminating Chevron, he suggested, would allow citizens to “organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election.”
The opinion suggests Gorsuch’s disposition “to resist overweening exercises of executive power,” said Michael W. McConnell, a professor at Stanford Law School.
“Concern about Chevron might logically lead one to be concerned about executive unilateralism in other areas, including immigration,” said McConnell, a former judge who sat on the Denver-based appeals court with Gorsuch.
Gorsuch’s critics argue he applies that reasoning selectively, to advance an agenda more conservative than that of his hero, the late Justice Antonin Scalia. They worry that doing away with Chevron would empower judges to gut regulations by overruling agency experts charged with enforcing protections for workers, as well as food, medicine, air and water.
Gorsuch “takes a very different posture” on executive power when it’s applied to police or governors, said Dan Goldberg, legal director for the liberal Alliance for Justice.
Goldberg pointed to a case over Utah Governor Gary Herbert’s decision to unilaterally suspend funding of Planned Parenthood after the 2015 release of videos that purported to show officers of the health care provider discussing a fetal tissue donation program.
Gorsuch broke ranks with colleagues who ruled that the Republican governor had overstepped his authority. He unsuccessfully pushed for a rehearing, saying the appeals court should have respected a trial judge’s conclusion that the governor was acting with a legitimate motive. The judge who led the majority said Gorsuch’s opinion “mischaracterizes this litigation and the panel opinion at several turns.”
To Goldberg, the case shows Gorsuch was “willing to ignore court practice and custom” in an ideologically driven dispute to “defend an otherwise illegal act.”
For Gutierrez-Brizuela’s lawyer, Cook, it’s a tough call to predict how Gorsuch’s views on executive power will guide him if he’s called on as a Supreme Court justice to review Trump’s immigration restrictions.
“I don’t want to say that he may disappoint Mr. Trump,” Cook said. “But I believe if the president had an order that had a constitutional issue, I believe Mr. Gorsuch would rule on the side of the Constitution.”
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