Neil Gorsuch's Stance On Refugees Is Worrisome

by Joseph D. Lyons
Alex Wong/Getty Images News/Getty Images

Announcing the news like it were an episode of The Bachelor, President Donald Trump nominated Neil Gorsuch to the Supreme Court on Tuesday night. For conservatives who were dreading a left-leaning court after the death of Antonin Scalia, this must seem like Christmas came 11 months too early. Gorsuch is basically Scalia — or a more conservative version. FiveThirtyEight reported that he "would sit somewhere just to the right of the ideological space occupied by Scalia." But where would he come down on these Trump orders? Gorsuch's stance on refugees is non-existent at this point.

He has been known for conservative rulings, but The Guardian reports that they have tended to be centered on cases that put religion over the law, favor gun rights, and help prosecute death penalty cases. The SCOTUS Blog also released an overview of his judicial history earlier in January, and cases regarding refugees are not mentioned.

It's clear how he feels about the same-sex marriage ruling and other liberal causes, and it's not good. "American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda," Gorsuch wrote in The National Review.

The only time that Gorsuch has even gotten close to the refugee issue is with a case on immigration that he heard in his current position on the 10th U.S. Circuit Court of Appeals. It didn't focus so much on immigration itself, but rather Gorsuch's decision in Gutierrez-Brizuela v. Loretta Lynch attacked the concentration of power in executive agencies. He commented on two rulings, Chevron v. Natural Resources Defense Council and National Cable & Telecommunications Association v. Brand X:

Chevron and Brand X permit executive bureaucracies to swallow huge amounts 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.

The question then — since we don't know his views on refugees — is whether he thinks that any executive act can concentrate federal power in a similar way. Trump has become addicted to executive orders since his inauguration, and one could argue he should consult Congress. You can also argue that the judiciary should get to strike things in the orders down, if they're not constitutional. Some at Customs and Border Patrol, part of a federal agency, ignored the courts' stays on the ban.

If the Senate holds confirmation hearings, this would be the area to focus the questioning. Will Gorsuch be willing to limit Trump's actions if they are unconstitutional? Or would he be willing to overlook more serious, constitutional matters if he agrees with the particular policy at hand. Essentially, to what extent would he act independently of the president.

Arguably Gorsuch should be opposed by Democrats no matter what, but controlling Trump's authoritarian streak needs to be the overriding goal of the next four years.