A Big Blow Against Arbitrary Law?

George Will discusses a the recent 5-4 decision by the Supreme Court overturning a portion of immigration law, and argues that the decision can have wider ramifications for the federal bureaucracy:

Image via Pixabay.

Writing for the majority in a 5-4 decision -- and joined by Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor (with Gorsuch concurring in the judgment and much of the opinion) -- Elena Kagan wrote: The law's category, a "crime of violence," is so indeterminate ("fuzzy," she said) that deporting [James] Dimaya under it would violate the Constitution's "due process of law" guarantee.

Vague laws beget two evils that are related: They do not give citizens reasonably clear notice of what behavior is proscribed or prescribed. And they give -- actually, require of -- judges and law enforcement officials excessive discretion in improvising a fuzzy law's meaning.

Will argues further that vague laws also allow Congress to slough off responsibility for making law, ceding too much power to the federal bureaucracy. This decision can help reverse a very bad trend in this regard:

The principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through many practices of the administrative state, which translates often vague congressional sentiments into binding rules, a practice indistinguishable from legislating. Gorsuch's principle is also pertinent to something pernicious concerning which he has hitherto expressed wholesome skepticism: "Chevron deference."

This is the policy (named for the 1984 case in which the Supreme Court propounded it) whereby courts are required to defer to administrative agencies' interpretations of "ambiguous" laws when the interpretations are "reasonable." Gorsuch has criticized this emancipation of the administrative state from judicial supervision as "a judge-made doctrine for the abdication of judicial duty."

Will notes that Gorsuch bucks a conservative trend of "broad judicial deference to decisions because they emanate from majoritarian institutions and processes," which strikes me as a welcome departure from the example of another conservative justice, the one who twice "saved" ObamaCare, the second time by just such an abdication. (Scroll down to the bullet for George Will.)

-- CAV