The controversy last week over Justice Neil Gorsuch joining a liberal majority in declaring unconstitutional an immigration statute supported by the Trump Administration overshadowed Justice Clarence Thomas’s provocative dissent in the case. “Until today],” wrote Thomas, “this Court has never held that an immigration statute is unconstitutionally vague.”
In fact, Gorsuch and Thomas ruled in different ways on the result in Sessions v. Dimaya because they both aimed at constraining arbitrary power and, ultimately, the administrative state.
Gorsuch maintained that he was following the reasoning of the justice he replaced, the late Antonin Scalia, who had used the Fifth Amendment due process clause to nullify a law on grounds of its alleged vagueness about what a “violent felony” is. The Fifth Amendment reads “no person shall … be deprived of life, liberty, or property, without due process of law.” But Thomas is hunting even bigger game—not only the judiciary’s abuse of the due process clause through arbitrary interpretation (e.g., Roe v Wade) but how originalist jurisprudence should argue about immigration and the rights of aliens.
Thomas’s opinion in fact reflects the founders’ view that only citizens who form part of the consenting social contract are fully protected by the nation’s laws. For this reason, “the Court upheld vague standards in immigration laws that it likely would not have tolerated in criminal statutes.” Indeed, “it was, at best, unclear whether federal removal statutes could violate the Due Process Clause.” Dimaya marks the first time “vagueness” has been used to void a federal removal statute.
Thomas then provides some intriguing details from the early federal attempts to regulate immigration and alien rights, culminating in the notorious Alien and Sedition Acts. In the 1790s, Thomas Jefferson opposed these laws. But he did so less as a friend of liberty than as a protector of slavery: he feared that expanded federal power would inevitably permit federal power over slavery. Thomas quotes in support Walter Berns: “Whether pro- or anti-slavery, most southerners, including Jefferson and Madison . . . were united behind a policy of denying to the national government any competence to deal with the question of slavery” in the states. Thus, as has been said, the Civil War was Thomas Jefferson arguing with himself, as author of the Declaration of Independence (“all men are created equal”) and as author of the Kentucky Resolutions (state sovereignty—to protect slavery).
In support of the Alien Friends Act, first, “the Federalists argued that the rights of aliens were governed by the law of nations, not the Constitution.” And the “law of nations imposed no enforceable limits on a nation’s power to remove aliens”—which is consistent with the natural law notion that only those who participate in the social contract have full rights under it.
Second, the law did not threaten fundamental citizen rights to “life, liberty, and property.” The Federalist argument was that “‘privileges’ or ‘franchises’ bestowed by the government on individuals … did not qualify and could be taken away without judicial process.” Aliens may have a legally granted privilege to reside in America but the executive could revoke it. “After the Alien Friends Act lapsed in 1800, Congress did not enact another removal statute for nearly a century.”
Only in 1950 did the Supreme Court find due process violations in non-penal removal statutes. “But the Court upheld vague standards in immigration laws that it likely would not have tolerated in criminal statutes,” Thomas writes. While Progressive racial theories may well have had influence here, I would emphasize as well the abiding force of founding social contract views: Laws governing citizens should be held to higher standards than those over aliens. In fact, “it was at best, unclear whether federal removal statutes could violate the Due Process Clause.” I would add to these cases, as Thomas does not, the ethnic Japanese exclusion cases of World War II.
Thomas finds the reason for the court’s change in his adoption of post-Dred Scott substantive due process assertions, which empowered the judiciary to overturn laws, often arbitrarily. One of its traditional tools to advance the due process innovation was the vagueness test. He argues that “perhaps the vagueness doctrine is really a way to enforce the separation of powers—specifically the doctrine of nondelegation.” But this would make the vagueness objection an application of the Constitution’s vesting authority, its separation of powers, not the due process clause. If we take the founders’ adaptation of Blackstone seriously, “the executive Power” includes the power to deport aliens.
It is sad that Justices Kennedy and Alito did not join Thomas in this historical section of his dissent. Even worse, Gorsuch, while not going as far as the Kagan plurality, dismisses Thomas’s use of the American Founding.
But the Alien Friends Act—better known as the “Alien” part of the Alien and Sedition Acts—is one of the most notorious laws in our country’s history…. Yet even then it was widely condemned as unconstitutional by Madison and many others. It also went unenforced, may have cost the Federalist Party its existence, and lapsed a mere two years after its enactment. With this fuller view, it seems doubtful the Act tells us a great deal about aliens’ due process rights at the founding.
These inapposite comments—which I hope are the worst lines he ever writes in his career—in turn raise an even more fundamental worry about Gorsuch. Is he basing this decision on underlying “new natural law” principles, which are not so friendly to borders?
It is clear that Thomas argues on immigration in the context of the founders,’ old, social contract natural law, as he does generally. Thus, while being an ally with Thomas on the administrative state, Gorsuch may dissent from President Trump on other immigration issues besides this decision, which he characterizes by its “narrowness.”
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