Can the Trump Administration Sanction Sanctuary Cities?

Can the Trump Administration Sanction Sanctuary Cities?

Feature Posts, Immigration, Legal

Some cities and counties in the United States refuse to cooperate with Federal immigration authorities.  This lack of cooperation takes several forms, including prohibiting the local authorities from inquiring about an individual’s immigration status, refusing to notify Federal immigration enforcement personnel of wanted illegals or refusing to detain illegal immigrants, at the request of Federal authorities, who are arrested for local criminal violations beyond their release date.  The cities and counties employing these tactics are collectively referred to as “sanctuary cities.”

President Donald J. Trump made “de-funding” sanctuary cities a cornerstone of his Presidential campaign.  The incidence of illegal immigrant criminal activity, coupled with high profile illegal immigrant murders, rapes and robberies too numerous to recount here, propelled the popularity of his proposal to stop sending Federal funds to these jurisdictions.  Yet, the term “sanctuary city” is not defined in Federal law.  The meaning ascribed to the moniker in popular culture simply refers to a city or jurisdiction which harbors illegal immigrants in defiance of the law.  For purposes of the Trump Administration’s policy to withhold Federal funds, however, the term “sanctuary jurisdiction” has the very specific meaning set forth in President Trump’s Executive Order on the issue.

In this brief, I will explain why the Federal government CAN (at least to some extent) de-fund sanctuary jurisdictions.  I will explain the inherent powers of the Federal government in the field of immigration, the corresponding State’s Rights or Federalism issues, the Trump Administration’s current policy regarding “sanctuary jurisdictions,” explore the current legal challenges to this policy and explain, as best I can, in layman’s terms the Constitutional and statutory issues, and legality, of the Administration’s policy.  The issues involved are quite complex, so I ask my readers to bear with me.  I will break the issues down to the basics and, hopefully, leave my readers with a better understanding of the law and Trump Administration policy.

Immigration Law and the Constitution

First and foremost, the United States Constitution grants the Federal government “. . . broad, undoubted power over the subject of immigration and status of aliens.”  Arizona v. U.S., 567 U.S. 387 (2012).  Arizona v. U.S., is the landmark case which arose during the Obama Administration wherein the Federal government challenged an Arizona State law which sought to make violations of Federal immigration law violations of State law and imposed criminal sanctions on illegals who worked in Arizona (among other things).  The United States Supreme Court invalidated most of the Arizona statute as issue.  In so doing, the Court found the Federal government’s power over immigration was broader than most commentators previously believed.

The Supreme Court found, on immigration, Congress had the power to “pre-empt” State law.  The Court further found the Congressional acts on immigration, coupled with the extensive Federal regulations bearing directly on immigration, resulted in the Federal government “occupying the field” of immigration.  This is known as the doctrine of “field pre-emption.”  See Arizona v. U.S., 567 U.S. 387 (2012).  Field preemption results when the Federal control (through statutes, regulations, etc…) of an area of the law is so widespread, no room remains for any State law.  The Court found this to be the case regarding immigration law in the Arizona case.

Likewise, when the Federal government undertakes a valid exercise of its power as a sovereign nation, state laws which conflict with Federal law are pre-empted.  As the Court stated in Arizona, this principle includes “. . . those instances in which the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  (I don’t want to bog my readers down with too much information on preemption doctrines, but this is a type of implied preemption called “conflict preemption.”)

The end result is States are not at liberty to legislate regarding immigration.  They are not even authorized, on their own, to make violations of Federal law a violation of State law.  This practice was specifically rejected in Arizona v. U.S.  (The repudiation of this practice surprised some legal experts, simply because in other areas of exclusive Federal jurisdiction, this practice is allowed.  Any duck hunter will know the Federal government sets the rules and bag limits, but the State game wardens can charge a hunter for violations of the law and the State can prosecute the hunter in State court.)  Thus, the power of the Federal government over immigration is complete.

The Violation of Federal Law at Issue and the Effort to Strip Funding

In 1996, the Republican-controlled Congress passed a statute specifically directed at sanctuary jurisdictions.  The statute is 8 U.S.C. §1373.  While I doubt many of you want to read statutes, a portion of this one is worth reproducing.  Section 1373 provides, in part:

Notwithstanding any other provisions of Federal, State or local law, a Federal, State or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. §1373(a).  It is this specific provision forming the basis of President Trump’s Executive Order on sanctuary jurisdictions.  President Trump signed the Executive Order at issue, entitled, “Enhancing the Public Safety in the Interior of the United States,” on January 25, 2017.  Section 9 of the Executive Order deals with Sanctuary Jurisdictions.

Section 9 states it is the policy of the executive branch to ensure States and political subdivisions of States comply with 8 U.S.C. §1373.  Section 9(a) requires the Attorney General and the Secretary of the Department of Homeland Security to ensure that “jurisdictions that willfully refuse to comply with 8 U.S.C. §1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” (Executive Order)  This provision, coupled with the applicable statute, forms the basis of the effort to strip funding from sanctuary jurisdictions.

Importantly, as I write this, the Trump Administration is yet to actually strip any city or State’s funding for any violations of 8 U.S.C. §1373.  Nonetheless, a couple of cities, including San Francisco, filed suit in Federal court seeking to stop any effort to strip their Federal funding.  Oddly enough, San Francisco seeks a declaration it is not in violation of the 8 U.S.C. §1373.  (San Francisco Complaint)  The city claim its sovereignty and 10th Amendment rights are potentially going to be violated.  What to make of these contentions?  Let us take a look at that.

The Exercise of the Federal Spending Power and State’s Rights

Article I, Section 8, Clause 1 of the United States Constitution grants Congress the power to “. . . lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general welfare of the United States; . . .”  This provision is commonly referred to among Constitutional scholars and the Supreme Court as the Taxing and Spending Clause.  It forms the basis of the Federal Government’s Spending Power.

If my readers will harken back to high school civics class, one may recall the Federal government is one of limited, enumerated powers.  Congress does not have the right to legislate over anything and everything.  The Federal government only possesses the powers set forth in the Constitution itself.  Nevertheless, the Spending Power has been used by the Federal government to make States pass laws and undertake actions the Federal government otherwise did not have the power to force on the States.  The United States Supreme Court expressly held the Taxing and Spending Clause “. . . empowers Congress to authorize expenditures of public monies for public purposes not limited by the direct grants of legislative power.”  U.S. v. Butler, 297 U.S. 1 (1936).

There are limits on the exercise of Federal power, including the Spending Power, to be sure.  These limitations are based on the nature of our Republic, imposed by the Constitution.  The United States Constitution established a system of dual sovereignty between the States and the Federal government.  Printz v. U.S., 521 U.S. 898 (1997).  As the Supreme Court observed, “Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.”  Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). The existence of two sovereigns (the Federal government and State governments) leads to the “. . . possibility that laws can be in conflict or at cross-purposes.”  Arizona v. U.S., 567 U.S. 387 (2012).

Some States, in connection with this issue claim, requiring them or their political subdivisions to cooperate with Federal immigration authorities infringes on their rights as separate sovereigns.  They further argue that conditioning receipt of certain Federal funds on such cooperation further violates their rights.  This is the fundamental basis of the disagreement.

Central to this disagreement are Supreme Court cases holding the Federal government may not “compel the States to enact or enforce a federal regulatory program.” New York v. U.S., 505 U.S. 144 (1992).  Similarly, the Federal government cannot “circumvent that prohibition by conscripting the State’s officers directly.”  Printz v. U.S., 521 U.S. 898 (invalidating portions of the Federal Brady Act which required State law enforcement officials to conduct background checks on gun purchasers.  Importantly, this case involved an exercise of Federal power under the Commerce Clause.)  These cases also form the basis of the local government’s challenge to compliance with Federal immigration law.  Yet, one must be mindful of what the Court did NOT decide in Printz. The Court refrained from “. . . deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid.” Printz, at 936 (Connors, J., concurring.)  Furthermore, the Court was not faced with an exercise of the Federal government’s inherent powers (such as the power to regulate immigration).

The Supreme Court noted, in specific reference to the exercise of the Spending Power, that “The framers explicitly chose a Constitution that confers upon Congress the power to regulate people, not States.”  New York v. U.S., 505 U.S. 144 (1992).  The Supreme Court’s case law on this issue requires the Federal government to give notice to the States of the “strings” attached to the receipt of Federal funds, such that the States “voluntarily and knowingly accept the terms.”  National Federation of Independent Businesses v. Sebellius, 567 U.S. 519 (2012).  Further, the financial inducement offered by Congress may not be so “coercive as to pass the point at which pressure turns into compulsion.”  Steward Machine Co. v. Davis, 301 U.S. 548 (1937).  Also, Congress may not change the rules retroactively on the States (after the fact).  Bennett v. New Jersey, 470 U.S. 632 (1985).  Another important limitation on the Spending Power is the grant to the States must be “germane to the federal interest in particular national projects or programs.”  South Dakota v. Dole, 483 U.S. 203 (1987).

These principles led the Supreme Court to invalidate the provisions of the Affordable Care Act which authorized the Federal government to strip ALL Medicaid funding if the States did not adopt the mandated Medicaid expansion.  The Court found stripping millions and millions of dollars from the States for failing to agree to expand the program at the cost of millions and millions of dollars to the States was not an “inducement,” it was a “gun to the head” and went too far.  See National Federation, 567 U.S. 519 (2012).

How do these principles apply to the current “Sanctuary Jurisdiction,” Federal funding issue?  First of all, the Federal government has complete, unfettered authority to regulate and control immigration.  Arizona v. U.S., 567 U.S. 387 (2012).  Importantly, The Supremacy Clause of the United States Constitution provides, in part, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby. . .” Article V, Clause 2, United States Constitution.  Clearly then, 8 U.S.C. §1373 is a Constitutional exercise of Congressional authority.

Importantly, sanctuary jurisdictions cannot now claim to be “surprised” by the funding issue, at least with respect to the Edward Byrne Memorial Justice Assistance Grant program and the State Criminal Alien Assistance Program.  This is because the Obama Administration put the participating jurisdictions on notice of the requirement that they be in compliance with 8 U.S.C. §1373 as of July 7, 2016.  This was done at the behest of Republicans in Congress (specifically Rep. John A. Culberson, R-TX).  (Obama DOJ Notice)

(If you are interested in biased reporting, you will not be surprised to learn when the Obama Administration decided to notify sanctuary cities of the potential for their Federal funding to be stripped, the press was much more favorable.  (Fake News) Not a word about lawsuits or unconstitutionality, nothing of the kind.  How about that?)

Anyway, can the Trump Administration start stripping some of the funding from sanctuary cities?  Sure, after all, the Supreme Court approved of Congress using the Spending Power to entice States adopt unemployment compensation laws, See Steward Machine Co., v. Davis, 301 U.S. 548 (1937), to make States change their legal drinking age, See South Dakota v. Dole, 483 U.S. 203 (1987), to adopt coal mining standards, Hodel v. Virginia Surface Mining & Reclamation Assn, Inc., 452 U.S. 264 (1981), and to adopt environmental standards, Arkansas v. Oklahoma, 503 U.S. 91 (1992)(case involving the Clean Water Act), to name a few.  On what grounds can the States refuse to comply with the Law of the Land on immigration? If the States can be compelled to create unemployment compensation schemes (something FAR beyond the power of Congress to do itself) by creative use of Federal funds, why can’t the Federal government require States to comply with 8 U.S.C. §1373 (which requires nothing more than communication) or lose Federal law enforcement grants?

A review of the applicable Supreme Court cases reflects the Federal government would NOT run afoul of any of the limitations imposed on the use of the Spending Power by stripping Federal law enforcement grants from Sanctuary Jurisdictions.  The States received notice of these obligations.  The States are not being “coerced” to the point of having a “gun” to the head.  The rules are not being changed after the fact.  And the funds to be withheld are germane to the Federal interest of law enforcement.

Where the Administration might be on shakier ground is if it tries to withhold funds without notice or unrelated to the Federal programs of which the local jurisdictions are on notice.  Can the Federal government simply pull ALL Federal funding from Sanctuary Jurisdictions?  Probably not.  That might be the proverbial “gun to the head” right?  The Department of Justice, however, could greatly expand the programs and Federal grants upon which compliance with 8 U.S.C. §1373 are required.  That would allow the Federal government to target all manner of other funding (education, prisons, housing, SNAP, etc…).

One last significant point of note on this issue is this: the Federal government could sue the local jurisdictions and obtain Federal court orders requiring compliance.  Federal courts have authority under the Supremacy Clause to order State officials to comply with Federal law.  See Washington v. Fishing Vessel Ass’n, 443 U.S. 658 (1979); Griffin v. School Board of Prince Edward County, 377 U.S. 218 (1964); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958); Puerto Rico v. Branstad, 483 U.S. 219 (1987).  The Federal government could literally use the judicial power and have Federal courts order State officials to comply with Federal law.

Congress clearly had the power to enact the applicable statutory law. The Executive Branch clearly has the power to enforce it.  In fact, the Federal Spending Power is typically used to get the States to do things the Federal government could not ordinarily make the States do.  Stated another way, the Federal government can use the Spending Power to compel the States to act beyond the Federal government’s enumerated powers.  That is why conservatives oftentimes oppose the use of the Spending Power.  (Does anyone see the irony here of conservatives arguing for the Spending Power, while the City of San Francisco files a suit claiming its “State’s Rights” are violated?)  Here, the Federal government has complete authority to make the law and make the States comply with it.

I will conclude by observing the Federal government has the power to compel reluctant States to comply with Federal immigration law.  The Federal government may use the Spending Power, as long as the conditions imposed by the Supreme Court are observed.  In my opinion, the Federal government could also use the judicial power and have Federal courts order such compliance.

Compelling compliance among the more radical jurisdictions may require the Trump Administration to bring all available means to bear.  Stripping Sanctuary Jurisdictions of the right to receive a share of a few billion dollars in Federal law enforcement grants may not be enough.  To expand beyond those funding sources, the Federal government will need to implicate other Federal programs, such as housing, supplemental nutrition assistance and other benefit programs and provide States with notice of the need to comply with Federal legal requirements to exclude illegals from participating in those programs as well.

There is more than one way to “skin the cat,” so to speak.  If the Trump Administration intends to break the will of the leftist “resistance” in cities like Chicago or New York, it will need to use every means at its disposal.

Randy Street, Esq.
Monroe, LA
April 11, 2017

Randy Street, Esq.

Hunting, fishing, gun toting Louisianian. Republican. Attorney. Pro-gun. America First. Donald J. Trump is my President. #MAGA

JUDGE NEIL GORSUCH: Antonio Scalia or David Souter? A Brief Examination of his Record

JUDGE NEIL GORSUCH: Antonio Scalia or David Souter? A Brief Examination of his Record

Feature Posts, Legal, News

Justice Antonin Scalia cast an enormous shadow across the legal landscape of this Country. Throughout his nearly 30 years on the Supreme Court of the United States, he applied his conservative, “originalist,” “strict constructionist” judicial philosophy to the Court’s decisions. He profoundly impacted the Court and shaped its opinions. He is widely regarded as one of the Court’s most influential justices in modern times. His untimely death in February 2016 left a tremendous void on the Court; a void newly-elected President Donald Trump promised to fill with a like-minded conservative jurist.

Virtually every person in America read or heard about President Donald Trump’s first nomination to the United States Supreme Court, Judge Neil Gorsuch. Judge Gorsuch is a Federal Appeals court judge serving on the United States Court of Appeals for the Tenth Circuit. Among the questions posed by many court observers, commentators and conservatives following this nomination are: (1) did President Trump keep his word to appoint a conservative jurist to replace Justice Scalia and (2) if Judge Gorsuch is conservative, will he stay that way or is he another David Souter?1 Numerous friends and family members asked me these same questions. I decided to make an effort to answer these questions and, now, share these answers with you.

Questions such as these are not the easiest to answer, particularly the questions over the concerns the judge might turn out to be a “secret” liberal, like Justice Souter. To satisfy myself of Judge Gorsuch’s conservative bona fides, I delved into his background, biographical data and court decisions. I also reviewed opposition research and opinions, as well as portions of the judge’s confirmation testimony (both at the original confirmation and the hearings going on as this is written). My conclusion is simple: Judge Gorsuch is a principled Constitutional conservative jurist. Unlike Justice David Souter, Judge Gorsuch is the real deal. While trying to divine how a Supreme Court nominee will rule once he or she is actually a member of the Court is inherently speculative, the “tea leaves” indicate President Trump selected a man well-suited to picking up Justice Scalia’s mantle on the United States Supreme Court. Allow me to explain how I reached these conclusions.

Neil McGill Gorsuch was born in Colorado in 1967. Anne Gorsuch, the judge’s mother, served in the Colorado state house of representatives and, later, served as the Administrator of the EPA in the Reagan Administration. He was raised Catholic and attended Catholic prep schools, graduating from Georgetown Preparatory School in Maryland in 1985.

Neil Gorsuch earned his bachelor of arts from Columbia University in 1988, where he graduated with honors. He obtained his law degree from Harvard Law School, where he also graduated with honors in 1991 (he was classmate of former President Barack Obama at Harvard Law). He also obtained a doctorate in philosophy from Oxford University in England in 1995 (his dissertation was written on the right to assisted suicide). Gorsuch clerked for the U.S. Court of Appeals for the D.C. Circuit, then for Justices Byron White and Anthony Kennedy on the United States Supreme Court, ending in 1994. He was then in private practice from 1995 to 2005, followed by a short stint at the U.S. Department of Justice during George W. Bush’s administration. President Bush 43 appointed him to the court of appeals. He was confirmed on July 20, 2006.2

Those of you concerned over Judge Gorsuch’s conservative credentials will be well pleased to learn Judge Gorsuch is from a conservative Republican family. He enjoyed a conservative, religious education. He remained true to his conservative upbringing throughout college and law school. From there he remained a conservative lawyer and judge.

A conservative reader might question the Judge’s college education. After all, just how many “conservatives” are produced by Columbia University? Columbia is one of the bastions of leftist academic thought in America. But, what did Neil Gorsuch do at Columbia? He challenged the liberal/leftist orthodoxy at the University as a writer for the school paper, the Columbia Spectator. He defended conservative principles and conservative leaders. For instance, he wrote an eloquent defense of President Ronald Reagan’s involvement in the Iran-Contra scandal, entitled, “Let’s let the commander in chief lead.See Here

While studying at Columbia University he also co-founded a paper, The Federalist, and a magazine, The Morningside Review. The far left Alliance for Justice contends these publications were founded by Gorsuch to “counter . . . what he . . . saw as the predominance of liberal political views at the University.” See Here Leftist campus radicals even attempted to organize a boycott of The Federalist newspaper for alleged connections to the Coors family (of Coors beer fame). See Here

The significance of Judge Gorsuch’s college years is to demonstrate that even at a young age he was a principled, courageous conservative. Why characterize him as courageous? This writer can assure you holding oneself out publicly as a conservative at an institution like Columbia University takes tremendous courage. The pressure, ridicule and potential retribution he endured, or subjected himself to, from campus leftists, student groups and professors most certainly required courage.

While his college record is important, and impressive, the single most persuasive piece of information I uncovered about Judge Gorsuch is a tribute he made recently to the late Justice Scalia. The tribute was made as part of the Case Western Reserve University School of Law, 2016 Sumner Canary Memorial Lecture. It is entitled, “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia.” You may find it here: See Here

The lecture is a powerful, moving tribute to Justice Scalia. In it, Judge Gorsuch focused on the differing roles of judges and legislators in our form of government and what Justice Scalia did to remind us of those differences. Judge Gorsuch stated:

But tonight I want to touch on a more thematic point and suggest that perhaps 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 imperfect-ly) 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 or the policy consequences they believe might serve society best.

Hon. Neil M. Gorsuch, 2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905, 906 (2016).

Judge Gorsuch goes on to elucidate the reasons why he is a “believer that the traditional account of the judicial role Justice Scalia defended will endure.” The Judge undertakes a powerful defense and explanation of the Constitution, of the Separation of Powers created by the Founders in the Constitution, of the unique nature of the Judicial Power granted to judges by Article III of the Constitution, how that power is different from the legislative power and why Justice Scalia was correct about all of the above.

This writer does not want to turn this short paper into a lengthy, esoteric discussion of complex (and uninteresting) legal and Constitutional issues and theory. For those who enjoy such things, read the entire tribute made by Judge Gorsuch. Simply stated, this tribute provides a detailed insight into Judge Gorsuch’s own ideas about the role of judges in our Constitutional Republic; insights the public will not often get of a nominee to our Nation’s highest court. This insight displays the judge’s deeply held conviction that Justice Scalia’s approach to the exercise of the Judicial Power, including the late Justice’s approach to Constitutional and statutory interpretation, is the correct approach.

Additional writings from Judge Gorsuch provide further insight into his philosophy. One such writing is an article published in the National Review. The article is entitled “Liberals and Lawsuits,” and in it he decried the use of courts by the left for social reform. See Here This article is a good read and Judge Gorsuch makes a good case why the left’s “addiction” to constitutional litigation is bad for the country, the judiciary and the left itself. The article is a forceful indictment of the Democratic Party’s use of litigation.

On the bench, Judge Gorsuch displayed a decidedly conservative bent in his decision-making. He voted with the majority in Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114 (10th Cir. 2013), which held a closely held corporation could sue under the Religious Freedom Restoration Act (42 USC §2000(bb)) to stop, on religious grounds, the Federal DHH regulations requiring the company to provide certain types of contraception. (This decision was ultimately affirmed by the United States Supreme Court, see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)).

In another case involving an action under 42 U.S.C. §1983 (commonly used in police brutality cases to bring a Federal claim against State law enforcement), Judge Gorsuch concurred to address the potential for abstention (a Federal court not exercising its jurisdiction) where the issue isn’t waived and where state court would afford a remedy. See Browder v. City of Albuquerque, 787 F. 3d 1076 (10th Cir. 2015). This case involved a cop who raced down the street on a personal errand (not on police business) and caused an accident, injuring someone. Noting such cases usually result in state law civil litigation, Judge Gorsuch concurred observing that in an appropriate case, where the defendant did not waive the issue, “comity” and “federalism” might lead the court to not decide a similar case.3

In other cases, Judge Gorsuch expressed skepticism about what is known as Chevron deference, referring to Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). In this case, the United States Supreme Court ruled Congress could grant an agency of the Executive branch authority to interpret an ambiguous Federal statute, even if that interpretation conflicts with a court’s interpretation of the same statute. On principled Constitutional, Separation of Powers grounds and on practical grounds, Judge Gorsuch questioned the wisdom of Chevron deference. See Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 (10th Cir. 2016).4

In another case touching on the Right to Bear Arms, involving a violation of the Federal statute barring felons possessing firearms, Judge Gorsuch affirmed the conviction (the man was erroneously instructed by a judge who presided over a previous guilty plea that he was not going to be a convicted felon as a result of the plea), but noted, our country has a “long tradition of widespread lawful gun ownership by private individuals,” that the United State Supreme Court ruled these rights were protected by the Second Amendment and “may not be infringed lightly.” See U.S. v. Gaines-Perez, 667 F. 3d 1136 (10th Cir. 2012).

In literally case after case, Judge Gorsuch took what one could properly characterize as a conservative position. See Druley v. Patton, 601 Fed Appx 632 (10th Cir. 2015)(case denying constitutional claims by a transgender inmate); U.S. v. Adame-Orozco, 607 F. 3d 647 (10th Cir. 2010)(case affirming a lower court’s interpretation of immigration law); Garcia-Carbajal v. Holder, 625 F. 3d 1233 (10th Cir. 2010)(case narrowly construing arguments presented by immigrant in lower court and finding arguments not preserved for appeal); Green v. Haskell County Board of Commissioners, 568 F. 3d 784, denial of rehearing en banc, 574 F. 3d 1235 (10th Cir. 2009)(where Judge Gorsuch dissented to denial of rehearing en banc in a case in which the 10th Circuit found an First Amendment Establishment Clause violation by the county allowing a Ten Commandments display on the courthouse lawn); American Atheists, Inc. v. Duncan, 616 F. 3d 1145 (10th Cir. 2010)(where Judge Gorsuch dissented to denial of rehearing en banc in a case in which the 10th Circuit found an First Amendment Establishment Clause violation by the state allowing crosses to be erected on public property in honor of fallen State Troopers); Wilderness Society v. Kane County, 632 F. 3d 1162 (10th Cir. 2011)(adopting a strict interpretation of Article III “standing” resulting in the dismissal of litigation brought by an environmental group); Shook v. Board of County Commissioners, 543 F. 3d 597 (10th Cir. 2008)(denying class certification to a proposed class action brought by inmates); Harvey v. Segura, 646 F. Appx 650 (10th Cir. 2016)(rejecting an inmate’s claim that his Free Exercise rights were violated by being subjected to a search by a member of the opposite sex and by confiscating religious head covering).

There are many more such cases, but hopefully the point is made. Cumulatively, the Judge’s background, upbringing, education, writings, experience and judicial decisions depict a staunchly conservative Constitutionalist. This writer could find nothing at all in the Judge’s background, public utterances or decisions to indicate to the contrary. President Trump most assuredly kept his word and appointed a worthy successor to the late Justice Scalia. Whether Judge Gorsuch continues to follow the same path on the United States Supreme Court, only time will tell, but the “tea leaves” indicate he will. The concerns of those worried about the legacy of Justice Scalia and the direction of the Court should be assuaged by this nominee.

Randy Street, Esq.
Monroe, Louisiana
March 28, 2017

1  To the uninitiated, former Justice David Souter was appointed by President George H. W. Bush to the Supreme Court in 1990.  Former New Hampshire Governor John Sununu was President Bush’s Chief of Staff at the time and was instrumental in obtaining Souter’s nomination.  Governor Sununu assured conservatives at the time that Souter would be a terrific appointment.  Souter was “conservative” in his early years on the Court, but eventually turned out to be one of the Court’s most liberal members.  Souter even stayed on at the Court long enough to allow President Obama to name his successor in 2009, rather than retiring earlier when President George W. Bush could make the appointment.  Given Souter’s deception, conservatives everywhere worry whether conservative nominees are going to remain so once they get on the Court.

2  In the interest of brevity, citations to this biographical data are omitted.  I will provide those upon request.

3  To those who may be unfamiliar, “comity” in this context is the principle by which courts of one jurisdiction (here the Federal government) give effect to the laws or decisions of another jurisdiction (here, state court). “Federalism” refers to the allocation of power and governing authority between a national government and local governments.

4  The reader may also note, Judge Gorsuch discussed Chevron deference in his tribute to Justice Scalia as well.

Randy Street, Esq.

Hunting, fishing, gun toting Louisianian. Republican. Attorney. Pro-gun. America First. Donald J. Trump is my President. #MAGA