In the wake of the nationwide Furor over the January 27 Muslim and refugee ban order of America's new Leader, Donald Trump, a ban which is so broad and which has such weak factual justification that there may be a good argument to the effect that Trump has exceeded even his admittedly very broad legal power to ban immigration under INA Section 212(f) - a topic I will be writing about in more detail shortly in an upcoming comment - there has been an understandable reaction by people who believe that Trump can do nothing positive on immigration, and that everything he does that might affect immigrant rights must be opposed knee-jerk style.

This kind of thinking includes opposition to the nomination of US 10th Circuit Court of Appeals Judge Neil Gorsuch for the Supreme Court, announced on January 31. For the reasons below, opposing this nomination would be a big mistake.

The reality is that Judge Gorsuch is on record in an important recent decision as standing up clearly and strongly for the power of the judiciary to resist attempts by the executive (in that case, the Obama administration) to infringe basic Constitutional rights of immigrants facing deportation. That decision is Gutierrez-Brizuela v. Lynch (10th Cir. August 23, 2016). In order to access a link to the full decision, see:

The views expressed by Judge Gorsuch in his decision (and his concurring opinion supplementing his own majority opinion!) are an important and doubtlessly much needed antidote to the attempts to rewrite large parts of our immigration system by executive order which are now coming out of the White House, evidently influenced by advisers such as Steve Bannon and Jeff Sessions - discussed in my January 30 immigration Daily comment.

In my next comment, i will present a detailed discussion of the above decision, which strongly attacks the Chevron doctrine of judicial deference to agency interpretation of its own regulations, no matter how unreasonable the interpretation may be, at least when applied in the immigration context.

This discussion will show that Judge Gorsuch, at least within the area of immigration (other issues being beyond the scope of this site):

a) Strongly believes in the separation of powers and rule of law and legal principles as a bulwark against the arbitrary rule of one branch of the government (or one person - the president), as opposed to using the law in order to impose any given ideology or attain a desired result, and,

b) Is clearly aware of and responsive to the hardships and and difficulties that immigrants encounter when their basis Constitutional rights are infringed, and is willing to resist attempts by the executive branch to ignore or trample on those rights.

Donald Trump may have now appointed exactly the kind of Supreme Court Justice who is best equipped to keep Donald Trump's current and anticipated future immigration excesses in check.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing primarily in the area of work visas and green cards for skilled and professional immigrants for more than 35 years.

Roger's email address is