Thread by @HNIJohnMiller

1) Ok, so, time for a daily little random thread. Gorsuch is trending because 'ZOMG HE SIDED WITH LIBERAL JUSTICES. Linked is the opinion, where Gorsuch was awesome enough to write a concurring opinion, starting on page 31 on the PDF supremecourt.gov/opinions/17pdf…

2) A concurring opinion is one where a SCOTUS justice agrees with the majority, but has a parallel opinion as a result. I figure before people start screaming 'impeach Gorsuch!' as if that's a thing that can happen, I think its worth looking at his opinion.

3) Because, ultimately, the prior SCOTUS decision that led him to THIS decision was written by: Scalia. YYYYYYUP.

4) First, a history lesson on English Common Law. English Common Law had enough gaps and grey areas where prosecutor abuse to essentially make the perceived crime fit into the laws available.

5) This abuse was one of the reasons for the revolution cited by the founders. Huh. Interesting. Anyways, the key bit here is this:

6) "Today’s vague laws may not be as
invidious, but they can invite the exercise of arbitrary
power all the same—by leaving the people in the dark
about what the law demands and allowing prosecutors and
courts to make it up"

7) So, baseline, the Immigration and Nationality Act is vague, as it requires the judge to ascertain that "the alien’s crime of conviction involves a substantial risk that physical force may be used."

8) Sounds simple right? NOPE. Because California is FUCKING THINGS UP AGAIN.

9) "Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products." California criminalized door to door salesmen. YEP.

10) When an armed intruder and a door to door salesman that smells funny and has bad teeth can be found guilty of the same crime, it is impossible to justify that there is a substantial use of force involved in the crime, as its VAGUE.

11) No, you can't do case-by-case for this kind of thing, because that's English Common Law right there. English Common Law is how someone gets sentenced to several months in prison for teaching his pug to raise a paw in a Nazi salute as a joke (Not joking here actually).

12) In a case in 2015, "Justice Scalia held the residual clause of the Armed Career Criminal Act void for vagueness because it invited “more unpredictability and arbitrariness” than the Constitution allows."

13) "Because the residual clause in the statute now before us uses almost
exactly the same language as the residual clause in Johnson, respect for precedent alone would seem to suggest that both clauses should suffer the same judgment." See, told you. Scalia is his spirit animal.

14) Oh, side note, the guy in this case is a lawful permanent resident alien, not an illegal. I saw some people conflating this with being about preventing illegals from being deported. That.... is a fucking dumb take on this.

15) Ultimately, this was WAS about the vagueness doctrine, ie clauses in laws that are too vague are going to be rejected. The conservative wing of the court set up their opinion to challenge the vagueness doctrine, the liberal wing upheld it, and Gorsuch went with them.

16) He goes on to treat this as a due process fight. Basically, this is protection against the government unfairly depriving us of our due process rights by allowing vague laws that can be molded against us, instead demanding that laws be specific.

17) So, he goes on citing a SHIT-TON of caselaw fighting in favor of the vagueness doctrine. It reads a fair bit like a history lesson, I highly recommend giving it a scan through.

18) Aaaaaand the zinger. "From this division of duties, it comes clear thatlegislators may not “abdicate their responsibilities for setting the standards of the criminal law,”"

19) "by leaving to judges the power to decide “the various crimes includable in [a] vague phrase,”"

Legislators need to be specific with what they intend for their laws to do. It is not the job of the lower judiciary to find what the intent is after the law's written.

20) Second zinger. "Allowing the legislature
to hand off the job of lawmaking risks substituting
this design for one where legislation is made easy..."

21) "with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.”"

22) Laws that interact with our freedom and due process need to be written and defined by ELECTED REPRESENTATIVES, not appointed PROSECUTORS AND JUDGES.

23) "For just these reasons, Hamilton warned, while “liberty can have nothing to fear from the judiciary alone,” it has “every thing to fear from” the union of the judicial and legislative powers." Third zinger! DONT LET JUDGES WRITE LAWS FOR THE LEGISLATURE.

24) Oooooooh, here's the fun bit. "Retreating to a more modest line of argument, the government emphasizes that this case arises in the immigration context and so implicates matters of foreign relations where the Executive enjoys considerable constitutional authority..."

25) "...but to acknowledge that the President has broad authority to act in this general area supplies no justification for allowing judges to give content to an impermissibly vague law." IE, the PRESIDENT has a lot of ability to make decisions on immigration law. Not judges.

26) Now is where he starts limiting the decision as much as possible. "It’s important to note the narrowness of our decision today in another respect too. Vagueness doctrine represents a procedural, not a substantive, demand."

27) "It does not forbid the legislature from acting toward any end it wishes,
but only requires it to act with enough clarity that reasonable people can know what is required of them and judges can apply the law consistent with their limited office."

28) Essentially, if the legislature wants someone who commits violent crimes to lose their legal permanent residency, awesome. They totally can. What they CANNOT do is put in a vague clause that gives the decision to judges as what constitutes a crime being considered 'physical'

29) And THAT is because SHITHEAD STATES LIKE CALIFORNIA apparently decided to make armed burglary and a poorly dressed door-to-door salesman THE SAME GODDAMN CRIME.

30) Calling it here. Hopefully people don't fucking spaz out too bad over Gorsuch siding with the liberals on this one. This was a good concurring decision that helps to shore up our due process protections. Thanks to @senatorshoshana for pointing the case out. /end