Gorsuch is an untrustworthy hairsplitter.

A few days ago, The Zelman Partisans opined upon SCOTUS changing the Question of the plaintiffs, and noted that Associate Justice Gorsuch… Well:

Although it could go 6/3. Gorsuch is such an insufferable hair-splitter that he may go along with the majority, too. On the other hand, he might object to the reframed question itself. Hard to say.

On Thursday, SCOTUS ruled 6-3 in an opinion in favor of the plaintiff in Niz-Chavez v. Garland. This was a case in which an illegal immigrant was fighting deportation. He challenged the fact that he was sent two notices to appear, not one.

Gorsuch wrote the majority opinion. Here’s the key part.

Held: A notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individ- ual’s removal hearing specified in §1229(a)(1). Pp. 4–12. (a) Section 1229b(d)(1) states that the stop-time rule is triggered by serving “a notice,” and §1229(a)(1) explains that “written notice” is “referred to as a ‘notice to appear.’ ” Congress’s decision to use the indefinite article “a” suggests it envisioned “a” single notice provided at a discrete time rather than a series of notices that collectively provide the required information. While the indefinite article “a” can sometimes be read to permit multiple installments (such as “a manuscript” delivered over months), that is not true for words like “notice” that can refer to either a countable object (“a notice”) or a noncountable abstraction (“sufficient notice”). The inclusion of an indefinite article suggests Congress used “notice” in its countable sense.

No, Gorsuch. As you note, it says “a notice”, not “a SINGLE notice.” What if they send a notice, and the illegal never appears, so they send a second notice? What if they have two addresses for the person and send a notice to both?

Added: I’d better clarify my reasoning for folks who don’t read the opinion.

The issue was whether two two notices, with different parts of the information constituted a legal notice. Gorsuch should have concentrated on the legal definition of “notice,” and concluded that Notice, Part 1 and Notice, Part 2 did not meet the definition. And he should have stopped there.

Instead, he mentioned that almost in passing, and focused on the definition and quantification of “a.”  That is what sets the precedent for the clusterfuck I described above.

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Bear

2A advocate, writer, firearms policy & law analyst, general observer of pre-apocalyptic American life.

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