If Neil Gorsuch wins confirmation to the Supreme Court, he could cast the deciding vote on President Donald Trump’s travel ban against immigrants from certain countries. But it’s far from certain how he would vote.
According to an Associated Press review of Gorsuch’s rulings, he has not written extensively about immigration policy during a decade on the 10th U.S. Circuit Court of Appeals. And the few rulings he has been involved in do not reveal how he might decide if given the opportunity to consider an immigration ban.
Many of the cases involved people challenging their prison sentences for returning to the U.S. illegally after having been deported. He has often been deferential to immigration authorities, but has also sided with immigrants.
“His record on immigration is a mixed bag, so it’s hard to predict how he would rule on any challenge to the executive order,” says Melissa Crow, legal director for the American Immigration Council, which challenged Trump’s original ban.
That order, which would have banned, people from seven majority Muslim counties, was put on hold last month by a federal appeals court, but Trump signed a new version March 6. That one removed Iraq from the list and eliminated a provision to give priority to religious minorities in allowing immigrants in.
The new order is to take effect Thursday, pending the outcome of legal challenges. It would not affect current visa holders but would bar new visas for people from Iran, Syria, Somalia, Sudan, Yemen and Libya. And it would temporarily shut down the U.S. refugee program.
There have been eight justices on the court since the death of Justice Antonin Scalia last year. So for now there’s the possibility of a tie vote, which means the lower court ruling would stand.
If Gorsuch makes the ninth vote, which way would he go?
While his rulings on major immigration policy are limited, they do offer insight into his thinking.
In a 2013 case, he wrote, “No doubt, we can and will strike down regulations that defy Congress’ statutes or the Constitution’s guarantees. We do not, however, amend, revise or undo administrative regulations just because they may not be to a litigant’s liking or our own.”
“Unless some violation of law is involved, the business of deciding the sometimes hard, often fine and nearly always contestable questions of immigration policy belongs to the legislature and executive, not the courts.”
Michael Dorf, a constitutional law professor at Cornell University, says Gorsuch’s sympathy for people in religious cases, a general skepticism of executive power and a history of ruling for immigrants give some reason to think he could be sympathetic to plaintiffs challenging a ban on people from certain countries.
But, Dorf added, “At this point it’s still sort of a guessing game.”
Gorsuch has shown sympathy for religious freedom, notably siding with employers who objected to providing employees coverage for contraceptives. He also found it was wrong for a Wyoming prison to deny use of an existing prison sweat lodge to an inmate who wanted to use it to exercise his Native American religious beliefs. But it’s not clear how those considerations would factor into a ban on people from majority Muslim countries.
In one immigration case, Gorsuch sided with a Somalian convicted of lying under oath during grand jury questioning about his asylum application, saying the immigrant should have been provided an interpreter. In another case, he was part of a decision that found the court lacked jurisdiction to consider an appeal from Mexican immigrants who argued deportation would create an undue hardship because their teenage kids were U.S. citizens.
In one of Gorsuch’s most noted immigration cases, he sided with an immigrant over the application of a law requiring some people who enter the country illegally to wait 10 years outside the U.S. before they can obtain legal residency.
In response to a Senate questionnaire that is part of the confirmation process, Gorsuch put that 2016 case at the top of a list of his most important rulings, saying it dealt with conflicting provisions in immigration law. One provision gave the attorney general power to grant residency to people who enter the country illegally, while another required the 10-year waiting period.
An appeals court had said the first provision trumped, allowing immigrants to apply to the attorney general to stay. But an immigration board said the 10-year rule took precedence. Gorsuch objected to the immigration board applying the 10-year rule for a man who applied for residency when the appeals court decision still stood.
In a concurring opinion, however, Gorsuch took aim at the longstanding Chevron doctrine, which gives deference to federal agencies’ interpretations of ambiguous statutes, calling it “an elephant in the room.”
He wrote that the doctrine and another ruling, often referred to as Brand X, allow “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.”
Marielena Hincapie, executive director of the National Immigration Law Center, said Gorsuch’s words hold troubling portents for immigration policy, though they came in a case in which he ruled in favor of an immigrant.
“He really believes agencies should not be given the deference that decades of courts have agreed they should be given and that it should be judges themselves who are the ones that are making the decisions about how those rules should be applied,” she said.
In considering Trump’s original order, the 9th U.S. Circuit Court of Appeals said the administration presented no evidence that any foreigner from the seven countries was responsible for a terrorist attack in the U.S. The court also noted allegations that the order targeted Muslims.
Kevin Johnson, dean of the UC Davis School of Law, said it’s hard to predict how any judge will rule in future cases, and in addition Trump’s plan has national security implications.
“When it comes to national security, courts are often deferential to the president,” he said.