Congress Criminal Justice & the Rule of Law Executive Branch

Neil Gorsuch on National Security Law

Helen Klein Murillo, Yishai Schwartz, Clara Spera
Wednesday, February 1, 2017, 2:51 PM

Last night, President Trump nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to fill the ninth seat on the Supreme Court. We have mined Judge Gorsuch’s opinions in the areas likely of interest to Lawfare’s readers — immigration, separation of powers, the Fourth Amendment, administrative law, international law, and foreign affairs.

Published by The Lawfare Institute
in Cooperation With

Last night, President Trump nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to fill the ninth seat on the Supreme Court. We have mined Judge Gorsuch’s opinions in the areas likely of interest to Lawfare’s readers — immigration, separation of powers, the Fourth Amendment, administrative law, international law, and foreign affairs. Before turning to our summary analysis of the cases, we begin with this statement by Judge Gorsuch, in a tribute to the late Justice Scalia, about how he views the proper role of judges:

[P]erhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions of the policy consequences they believe might serve society best.

Immigration and Criticism of Chevron

As Steve Vladeck noted this morning, “Gorsuch is perhaps best known for his strong views on one of the central questions of modern administrative law — how much deference courts should give to government agencies.” This includes one of those areas of administrative law of particular interest to Lawfare readers: immigration. So while most of Judge Gorsuch’s immigration rulings (as do those of most other federal judges) uphold the decisions of the Board of Immigration Appeals, two of his most interesting immigration decisions do not. Instead, they urge reconsideration of the landmark Chevron doctrine—under which courts defer to implementing agencies’ reasonable interpretations of ambiguous statutes.

Here, Judge Gorsuch considers whether a Board of Immigration Appeals’ ruling could be applied retroactively. Two complex, and conflicting, immigration statutes were before the court: one that would render the appellant eligible to apply for adjustment of immigration status, and another that would render him ineligible. Ten years prior, the Tenth Circuit had held that the statute allowing adjustment of status, even though an applicant had been unlawfully present in the United States for a year and had subsequently reentered without inspection, prevailed over the conflicting statute. After that decision, however, the Board of Immigration Appeals held the reverse. Upon reevaluation, the Tenth Circuit deferred to the Board’s reasonable interpretation.

But Mr. De Niz Robles applied for adjustment of status in reliance of the Tenth Circuit’s decision before the Board of Immigration Appeals had decided the other way. And — predictably — review of his application took so long that once the agency got to it, the Board’s determination had already come down. His application was denied. He appealed, arguing that the Board’s decision should not have been applied retroactively to deny his status adjustment. Judge Gorsuch agreed.

In the opinion, Judge Gorsuch appears sympathetic to Mr. De Niz Robles and criticizes the administrative state:

In an age where there is so much law and so many lawmaking authorities, trying to figure out what the controlling rule is and how to order your affairs accordingly can be tough enough. To suggest that even when you find a controlling judicial decision on point you can’t rely on it because an agency (mind you, not Congress) could someday act to revise it would be to create a trap for the unwary and paradoxically encourage those who bother to consult the law to disregard what they find.

Judge Gorsuch engages in a fuller critique of the administrative state and judicial deference to agencies in a later case (see below), but we get a good sense from De Niz Robles of his sustained reluctance to defer to agency interpretation. Importantly, the case shows Gorsuch’s attention to the comparative harms between the individual applicant and the Board: Judge Gorsuch points out that an unfavorable ruling would deny De Niz Robles the opportunity promised to him by the Tenth Circuit to have his petition considered, and notes that it is difficult to “see any significant — or really any — harm befalling the BIA” in a ruling in De Niz Robles’ favor.

In Guitierrez-Brizuela, Judge Gorsuch again disagrees with the Board of Immigration Appeals. But, like De Niz Robles, this case isn’t really about immigration: it’s about agency deference. In his majority opinion, Judge Gorsuch addresses “thorny” questions of administrative law, outlining how the Chevron deference doctrine interacts with Brand X, another administrative law case that holds that an agency’s interpretation of a statute is applied even in the face of circuit precedent, unless that precedent found that the statute at question was “unambiguous” for Chevron purposes. The Tenth Circuit had grappled with this difficult question before, but under circumstances that didn’t implicate the even-more-complex questions of timing. Here, the question was whether the agency’s interpretation applies prospectively, when the action in question — in this case, an immigrant applying for an adjustment of status — occurs after the agency issues a interpretation that overrules a circuit precedent, but before the interpretation has been reviewed and upheld in the court. Judge Gorsuch found that the court must have the opportunity to review the agency’s new interpretation and, until it has, the court precedent is binding.

More interesting than the technical — but clear and easy-to-read, all things considered — analysis in the majority opinion is the concurrence that Judge Gorsuch authored on behalf of himself alone. In it, Judge Gorsuch delivers a strong critique of the administrative state, urging the Court to reconsider Chevron. The concurrence essentially criticizes his just-authored majority opinion, arguing that though the opinion is right on the law, the law should be reevaluated. He argues that Chevron, along with other administrative law cases, “permit executive bureaucracies to swallow huge amount of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

But his critique doesn’t end with his criticism of the agencies’ concentration of power. He also excoriates the courts: “Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary.”

  • Other Immigration Cases: Narrow, but Deferential, Immigration Rulings

In U.S. v. Adame-Orozco (2010), Judge Gorsuch dealt with the interplay of federal and state law in the immigration context. The defendant, Juan Adame-Orozco, appealed his conviction for “illegal reentry after a prior deportation” on the grounds that the prior deportation was itself invalid. It was invalid, he argued, because the deportation order was premised on a state felony drug conviction that (he claims) he wasn’t given sufficient opportunity to attack in collateral proceedings. Writing for the majority, Judge Gorsuch ruled that Adame-Orozco’s complaints about the opportunities for collateral attack of his initial state conviction are irrelevant to the validity of his current conviction.

Federal law provides defendants with a defense against illegal reentry charges if they can show that the initial deportation proceedings “improperly deprived” them of judicial review. But, Judge Gorsuch explains, the defendant here did have the opportunity for judicial review of his deportation proceedings. Rather he alleges that he didn’t have sufficient opportunity to challenge the state convictions (cocaine possession, etc.) that provided the basis for his federal deportation proceedings. Federal law simply does not provide for such a defense in a trial for illegal reentry, or in Judge Gorsuch’s words, it “does not afford a license to bootstrap separate criminal proceedings into the process guaranteed to aliens facing deportation.”

Judge Gorsuch’s majority opinion in this case narrowly focuses on the text and history of the particular statute in question, 8 U.S.C. § 1326. So again it is difficult to draw out larger themes about the judge’s approach or tendencies in the immigration or national security context based on this case. But at the least, Judge Gorsuch’s opinion here reflects a tendency toward restraint—both from scrutinizing the actions of state courts within federal immigration proceedings, and from delaying deportations because of ongoing state proceedings.

Similar tendencies are at play in another immigration appeal, Garcia-Carbajal v. Holder (2010). Here, Alonso Garcia-Carbajal sought to avoid deportation through the Attorney General’s authority to cancel removals when they would cause “unusual hardship” to an alien’s U.S. citizen family members. An administrative law judge found Garcia-Carbajal ineligible for the special dispensation because he had committed crimes of “moral turpitude.” Garcia-Carbajal eventually challenged the administrative judge’s determination before the Board of Immigration Appeals (and lost), and then sought to do so again in federal court — but on new grounds. Writing for a majority, Judge Gorsuch waded through a morass of administrative law in ruling that the appellant’s situation did not meet the required criteria (under Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir.2007)) for raising an argument on appeal in court not argued before the administrative agency. Allowing the defendant to do so would, Judge Gorsuch warned would “do nothing to respect agency authority and much to undermine it, encouraging future efforts by litigants to squeeze elephants of arguments into court through administrative mouseholes.”

Again, it is unwise to squeeze elephantine meaning out of narrow decisions. Nevertheless, it seems fair to note that, despite the two BIA cases described above, Judge Gorsuch appears to maintain a wide respect for administrative adjudication in the immigration context, and a hesitation about inserting federal courts into the process before clearly necessary.

This interesting case deals with excessive force leveled at federal immigration detainees. Many state and local jails, prisons, and other detention facilities house federal immigration detainees, either because they have explicit agreements with federal immigration authorities to take in such detainees or because local law enforcement itself took the detainees into custody. The courts have been relatively quiet on the issue of use of force by correction personnel against immigration detainees. Here, Judge Gorsuch addresses the issue of the appropriate legal standard by which to evaluate whether such force is excessive, as well as questions of supervisory and municipal liability.

A federal immigration detainee, Mr. Porro, brought an excessive force claim against the employees and the sheriff of the jail where he was being detained. Mr. Porro claimed that, after he had been physically restrained in a chair, he was tased multiple times. At the district court, he won his claim against the employee that had tased him, but lost claims against the sheriff. Porro appealed the latter judgment.

Porro did not challenge the lawfulness of his detention nor the initial physical restraint: it was the use of the taser, after already being restrained, that formed the basis of his excessive force claim.

First, the court asked, “What provision of the Constitution should this court use to analyze a federal immigration detainee's claim of excessive force?" The court outlined the claims available to detainees at various stages: until formal charges are brought, a Fourth Amendment claim; post-conviction, an Eighth Amendment claim; and finally, when neither applies, “when the plaintiff finds himself in the criminal justice system somewhere between the two stools of an initial seizure and post-conviction punishment,” a Due Process claim. Judge Gorsuch found that, in this case, when a federal immigration detainee has been lawfully seized but is not “complaining about any punishment meted out as part of a post-conviction scheme,” a Due Process standard controls the excessive force claim.

Nevertheless, Judge Gorsuch agreed with the district Court that Porro could not win on a claim against the sheriff. With respect to supervisory liability, Porro’s claims failed because he did not show that the excessive force by the employee who tased him involved the sheriff in any way. Supervisory liability must involve some level of personal responsibility: “In the due process context, this means the focus is on the force the supervisor used or caused to be used, the resulting injury attributable to his conduct, and the mens rea required of him to be held liable, which can be no less than the mens rea required of anyone else.” Regarding municipal liability, Gorsuch rejected the argument that the county’s “failure to enforce a prophylactic policy imposing a standard of care well in excess of what due process requires cannot be — and we hold is not — enough by itself to create a triable question over whether county officials were deliberately indifferent to the Constitution.”

Huizar, another immigration case, gives us insight into Judge Gorsuch’s method of statutory interpretation in complex criminal law cases and suggests a preference for something like the rule of lenity.

Huizar is one of the few immigration cases where Judge Gorsuch sides with the immigrant. Mr. Huizar pled guilty to reentering the United States illegally after an earlier deportation. He had been deported for a 1995 California conviction for residential burglary. The trial court in Oklahoma took this prior conviction into account when assessing his sentence for illegal reentry, noting that it qualified as a “crime of violence,” triggering a hefty sentencing enhancement. Mr. Huizar argued that his California burglary should not be considered a “crime of violence.” Judge Gorsuch agreed.

As Judge Gorsuch explained, for the purposes of the federal sentencing enhancement, the facts of Huizar’s burglary would have to be sufficient not only for conviction under California’s burglary statute, but also to meet the Supreme Court’s definition of “burglary.” Ultimately, Judge Gorsuch found that the court simply could not be “certain” that Huizar’s conviction was for the type of burglary that qualifies for the enhancement: “without [a] degree of assurance, our precedent precludes the imposition” of the enhancement. The Tenth Circuit remanded the case for resentencing, while noting that the decision is narrow: “this appeal concerns only a . . . narrow[] . . . mechanical, and admittedly . . . arcane question — whether using the categorical or modified categorical approach we can say Mr. Huizar's California conviction necessarily meets [the Supreme Court’s] definition of ‘generic’ burglary.”

Huizar tells us little about Judge Gorsuch’s substantive views on immigration, but gives us insight on his approach to statutory interpretation in criminal cases. Like the Justice whose seat he would fill if confirmed, he seems to advocate for something akin to a rule of lenity. This isn’t precisely a lenity case. The rule of lenity holds that, when construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant. Here, an actual conviction isn’t at stake. Nonetheless, Judge Gorsuch demands clarity from the California statute. When he finds that the court “can’t be sure” that the California statute defining burglary covers all the requirements set out by the Supreme Court, he concludes that it is inadequate for the purposes of qualifying Mr. Huizar for the dramatic sentencing enhancement.

Separation of Powers, International Law and Foreign Affairs

Another significant window into Judge Gorsuch’s legal thought comes outside of the immigration context — in a dissent from denial of rehearing en banc in a case interpreting the Sex Offender Registration and Notification Act (SORNA). In Nichols v. United States (2015), Judge Gorsuch argues for more a robust non-delegation doctrine, the idea that Congress may not pass broad legislative powers to the executive:

Beyond this matter of statutory interpretation though, lies a constitutional question that deserves more notice. If the separation of powers means anything, it must mean that the prosecutor isn't allowed to define the crimes he gets to enforce. Yet, that's precisely the arrangement the Sex Offender Registration and Notification Act purports to allow in this case and a great many more like it. In § 16913(d), Congress left it to the Attorney General to decide whether and on what terms sex offenders convicted before the date of SORNA's enactment should be required to register their location or face another criminal conviction. So unusual is this delegation of legislative authority that to find an analogue you might have to look back to the time Congress asked the President to devise a code of “fair competition” for the poultry business — a delegation of legislative authority the Supreme Court unanimously rejected and Justice Cardozo called “unconfined and vagrant,” a “delegation running riot.” A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551, 553 (1935) (Cardozo, J., concurring). Even then you could be excused for thinking the delegation before us a good deal less cooped or caged than that one.

Perhaps unsurprisingly in the Tenth Circuit, Judge Gorsuch has written almost nothing in the areas of international law or foreign affairs. A search of all of his opinions yields one straightforward application of the Foreign Sovereign Immunities Act to protect two sub-national Chinese government entities from being sued in a U.S. court, and one similarly straightforward interpretation of a U.S.-Canadian prisoner transfer treaty.

Fourth Amendment & Third Party Doctrine

Although Judge Gorsuch has not ruled in any traditional terrorism cases, his opinion in Kerns v. Bader (2011) offers potential insight into how he might approach national security issues. In Kerns, the Tenth Circuit wrestled with alleged police misconduct in the aftermath of the shooting down of a police helicopter over Albuquerque by a sniper. Writing for the majority, Judge Gorsuch vacated a District Court finding that police officers lost their qualified immunity when they entered the plaintiff’s home on the night of the incident. Given the “exigent circumstances” surrounding the shooting, Judge Gorsuch ruled, the District Court had not adequately established that the officers’ search was “clearly violative” of the Fourth Amendment.

The judge adopts a similar posture of deference to “in the moment” policing decisions in other Fourth Amendment case as well. In US v. Martin (2010), for example, Judge Gorsuch ruled that police officers did not act unreasonably in detaining a man who provided a different last name than their suspect, but who matched other descriptors and indicated possession of a firearm. He writes: “Where, as here, circumstances giving rise to the claimed exigency occur not as a direct result of a long-planned arrest but ‘while the police are already out in the field investigating the prior or ongoing conduct which is the basis for the arrest… the presumption should be in favor of a warrantless arrest rather than against it.” (quoting Professor Wayne LaFave).

Also in Kerns, Judge Gorsuch acknowledges that the Supreme Court has already applied third party doctrine to financial information entrusted to banks, and that other circuits courts had applied the same analysis to personal medical records. However, Judge Gorsuch explicitly declined to “prejudge” the question of how to apply third party doctrine to medical records entrusted to hospitals and healthcare providers. But acknowledging the “live (and heated) debate” on the question, the judge held, did preclude the court from finding a violation of “clearly established law.” Whether Judge Gorsuch’s hesitation to assert that third party doctrine applies to medical records reflects a willingness to rethink Smith v. Maryland, or simply a penchant for judicial minimalism remains unclear.

Judge Gorsuch’s majority opinion in United States v. Ackerman (2016) offers some hints about how he might approach cases involving internet privacy, or the relationships between law enforcement and private communications companies of the sort revealed by Edward Snowden. In Ackerman, a defendant attempted to send child pornography via his email. His email provider, AOL, automatically intercepted the communication because the images matched the digital signatures of child pornography already catalogued by the National Center for Missing and Exploited Children (NCMEC). AOL forwarded the emails to NCMEC, which confirmed that they contained child pornography and referred the defendant to federal law enforcement for prosecution.

Writing for the majority, Judge Gorsuch ruled that NCMEC’s exercise of police functions subjected its actions to Fourth Amendment review, if not as a governmental entity itself, then as a government agent. Moreover, he declined to find that either the “third party” (see Smith v. Maryland) or the “private search” (United States v. Jacobsen) exceptions applied. As Judge Gorsuch explained, applying the “third party” exception would require additional fact-finding, while NCMEC’s examination of Ackerman’s emails exceeded that of AOL’s to the point that the “private search” doctrine no longer applied. Judge Gorsuch’s opinion is deliberately minimalist, but signals a willingness to rethink the scope of these exceptions in light of the digital age and to subject more electronic surveillance to Fourth Amendment scrutiny.

Another case of potential interest is United States v. Esquivel-Rios (2013), where Judge Gorsuch again addressed the intersection of technology and the Fourth Amendment. Writing for the majority, Gorsuch ruled that a faulty database system — if known to be sufficiently faulty and if its faulty search result were really the sole reason a traffic stop was conducted — might trigger the exclusionary rule. The panel then remanded the case to the District Court to better determine whether, once “all relevant facts” are examined, there was in fact “reasonable suspicion.” Judge Gorsuch’s concern that bad technology (what he labels the problem of “garbage in, garbage out”) might undermine investigative work, and even trigger the exclusionary rule, might have implications for increasingly data and technology driven national security work. However, the judge’s general tendency toward minimalism — preferring remand to sweeping rulings — makes it difficult to tell.

Helen Klein Murillo is a student at Harvard Law School, where she is an editor of the Harvard Law Review. Helen holds a B.A. in Political Science and Spanish from the University of California, Irvine.
Yishai Schwartz is a third-year student at Yale Law School. Previously, he was an associate editor at Lawfare and a reporter-researcher for The New Republic. He holds a BA from Yale in philosophy and religious studies.
Clara Spera is a 3L at Harvard Law School. She previously worked as a national security research intern at the Brookings Institution. She graduated with an M.Phil from the University of Cambridge in 2014, and with a B.A. from the University of Chicago in 2012.

Subscribe to Lawfare