There was an interesting clash yesterday between Justice Neil Gorsuch and the other conservative Supreme Court Justices. In the case of Sessions v. Dimaya, the Court held that the government could not deport a legal resident who was twice convicted of first-degree burglary. The majority consisted of the four liberal Justices plus Justice Gorsuch, who wrote a separate concurrence. Chief Justice Roberts and Justice Thomas wrote separate dissents.
The Immigration and Nationality Act lets the government deport any immigrant convicted of a “crime of violence.” Its definition of “a crime of violence,” after enumerating some such crimes, encompasses “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
To me, it is obvious that burglary, by its nature, ordinarily involves a substantial risk of physical force against its victims. However, Justice Kagan, in an opinion joined by the three other liberal Justices, held that the statute’s definition of “crime of violence” is impermissibly vague. She relied on Johnson v. United States, in which the Court, in an opinion by Justice Scalia, held that the Armed Career Criminal Act’s definition of “violent felony” was impermissibly vague.
In his concurrence yesterday, Justice Gorsuch explained why the void for vagueness doctrine is a legitimate basis for finding criminal laws unconstitutional. He did so in response to Justice Thomas who, in his dissent in Johnson and in this case, questioned whether that doctrine can fairly claim roots in the Constitution as originally understood.
Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. 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. . . .
I am persuaded. . .that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.
I agree. However, I also agree with Chief Justice Roberts who, in a dissent joined by Justices Kennedy, Thomas and Alito, argued that the statutory language in question is not unconstitutionally vague.
Roberts noted that the term “crime of violence,” defined exactly as it is in the Immigration and Nationality Act, appears repeatedly throughout the Federal Criminal Code (such that the Court’s decision will call into question convictions under oft-prosecuted offenses including ones involving firearms). The inquiry the language mandates is whether the elements of the crime naturally carry with them a substantial risk that the offender will use violence in committing it. In Roberts’ view (and in mine, though there is room for good faith disagreement) this inquiry does not engender an “intolerable uncertainty” about whether a crime carries with it the consequence of deportation.
Roberts spends considerable effort distinguishing this case from Johnson in which, as noted, the Court found similar but slightly different language — “otherwise involves conduct that presents a serious potential risk of physical injury to another” — impermissibly vague. I think Roberts succeeds, though one can reasonably disagree, as Justice Gorsuch did.
In a portion of his dissent joined by no other Justice, Justice Thomas continues to doubt that the “practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. He notes, among things, that the void for vagueness doctrine can be a tool for open-ended judicial authority to oversee legislative choices.
Thomas is right. I assume that’s why Justice Gorsuch was careful to say that the doctrine, at least properly conceived, faithfully serves due process and separation of powers principles. And it is probably why Chief Justice Roberts applied a stringent analysis in determining whether the language at issue is impermissibly vague.
Justice Thomas’ dissent also argues that that “even assuming the Due Process Clause prohibits vague laws, this prohibition might not apply to laws governing the removal of aliens.” This portion of the dissent delves into the debate the founding generation had, less than a decade after ratification of the Bill of Rights, about the relationship between the Constitution and federal removal statutes — a debate prompted by the Aliens Act adopted by Congress during John Adams’ administration.
This discussion is beyond the scope of my already over-length post. However, it’s well worth reading, especially if you’re an American history buff.
So too is the final part of Thomas’ dissent (joined by Justices Kennedy and Alito), arguing that a challenger invoking void for vagueness must show that the statute is vague as applied to him. In this case, when the deportee committed his burglaries in 2007 and 2009, he had plenty of warning that the statutory consequence is deportation because courts had unanimously concluded that residential burglary is a crime of violence.
Indeed, all three opinions — those of Gorsuch, Roberts, and Thomas — are worth examining, as the Court’s conservatives divide at least three ways.