Make the Gilded Age Great Again

Today, the Supreme Court held that a statutory provision authorizing permanent resident aliens to be deported for committing crimes of violence was unconstitutionally vague. Neil Gorsuch joined the judgment and some of the otherwise plurality opinion written by Kagan and joined by the other three liberal nominees. Does this mean that Gorusch is more liberal than was anticipated? Nooooooooo. Not at all. Not remotely. Indeed, his concurrence is not-very-subtly advocating an all-out war on the contemporary regulatory state:

Applied in the broader contexts Gorsuch wants to apply them, this would make enforcing federal regulations miserable, and also points towards striking down liberal legislation on nondelegation grounds. (For the implications and unworkability of the latter, I strongly recommend George Lovell’s perfectly titled “That Sick Chicken Won’t Hunt.”)

Ian Millhiser has more, including a good discussion of how to put Gorsuch in the context of the court’s reactionary wing:

Broadly speaking, there are two different approaches to the law on the Supreme Court’s right flank.

Justice Samuel Alito is the consummate partisan. Unlike his other conservative colleagues, Alito has never cast the key fifth vote to throw a decision to the Court’s liberals. He’s also far more inclined to manipulate existing doctrines than to overrule them — claiming that longstanding doctrines actually require progressive laws to be read narrowly, even when such claims are the opposite of the truth. Alito tends to view each case in isolation. And, whenever possible, he presents the best arguments he can muster to gain a conservative result in each particular case.

At the other end of the spectrum is Justice Clarence Thomas. Less partisan and more ideological, Thomas is willing to push much further than Alito, and he has no compunctions about explicitly overruling major precedents. For example, under Thomas’ theory of the Constitution, child labor laws and the federal ban on whites-only lunch counters are unconstitutional. Unlike Alito, however, Thomas thinks in terms of broad principles rather than in terms of isolated efforts to move the law to the right. On rare occasions, this broader approach to the law places Thomas to the left of his fellow justices.

[…]

Dimaya is not the first time Gorsuch has used an immigration case to make a broader statement against government regulation. As a federal appellate judge, Gorsuch wrote two opinions in Gutierrez-Brizuelav. Lynch, a case involving an immigrant who was unfairly jerked around by conflicting decisions by various government decision makers. In his first opinion, written on behalf of a three-judge panel, Gorsuch wrote a relatively narrow decision siding with the immigrant.

Then, in separate opinion joined by no other judge, Gorsuch launched into a rant against the Supreme Court’s decision in Chevron v. Natural Resources Defense Council. 

Chevron is one of the most important Supreme Court decisions of the last half-century. It provides that, when a federal agency pushes out a new regulation, and the statute which allegedly permits such a regulation is ambiguous, courts will typically defer to the agency’s reading of the statute unless that reading is outlandish.

Though Chevron was uncontroversial for several decades, it became one of the conservative Federalist Society’s most hated decisions during the Obama years — no doubt because Chevron required a judiciary controlled by Republicans to defer to environmental and labor regulators in a Democratic administration. Gorsuch’s critique of Chevron largely mirrors that of the Federalist Society — that Chevron places too much power in the executive branch and not enough in the legislature and judiciary.

The practical effect of a Supreme Court decision overruling Chevron would be to transfer power from whoever controls the presidency to a Republican-controlled judiciary.

Some of Gorsuch’s other writings, moreover, suggest that he may take an extraordinarily narrow view of Congress’ power to delegate regulatory authority to federal agencies. Gorsuch may even agree with Justice Thomas’ view that “generally applicable rules of private conduct” can only be created by an act of Congress.

To put it another way, if they’re outlying votes, as a liberal in a death-is-not-an-option game you’d rather have a conservative from the Thomas/Gorsuch ideological-maximalist wing than the Alito/Roberts partisan-minimalist wing, because the former are more likely to vote for a liberal result in a particular case. But as the latter get closer to the center of the court they get even more dangerous. And Gorsuch is a good indication of where conservative jurisprudence is headed — back before the New Deal.