Justice Neil Gorsuch and his four liberal colleagues struck down the deportation of a legal immigrant Tuesday morning, siding with the defendant because the statute under which his crime was found violent was too vague to pass muster.
The case, Sessions v. Dimaya, concerns green card holder James Dimaya, who immigrated to the United States from the Philippines in 1992. Dimaya was twice convicted of burglary in California; following his second offense, an immigration judge found that he could legally be deported under the Immigration and Nationality Act (INA) because his crime was judged to carry a substantial risk of violence.
Specifically, Dimaya was to be deported for committing a "crime of violence," a term which covers any felony which "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Importantly, Dimaya could be convicted under the "crime of violence" statute without actually having used physical force. Rather, the judge needed only to find that in the "ordinary case" of burglary, there was a "substantial risk" of force—neither concept having any clear definition.
The court concluded that this was too much ambiguity to pass muster. It did so based on a 2015 case, Johnson v. United States, which addressed another federal law's use of a similarly phrased definition of certain crimes. In Johnson, the court found 8-1 that that language failed to adequately explain how to measure "substantial risk" or otherwise articulate what cases were covered under a catch-all clause.
This, the late Justice Scalia wrote, meant that it contravened the well-established "void for vagueness" doctrine, which strikes down insufficiently clear laws. The definition would cause analysis to "devolv[e] into guesswork and intuition," Scalia wrote.
It was because of this concern about vagueness that Gorsuch sided with his liberal colleagues, a fact he makes clear in his concurring opinion.
Vague laws invite arbitrary power," Gorsuch wrote. "The law before us today is such a law."
Gorsuch pointed out that measuring the "substantial risk" of physical force being used requires defining an "ordinary case" of Dimaya's crime, burglary.
"How… is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force?" Gorsuch asked. "The truth is, no one knows. The law's silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more."
In this opinion, commentators noted, Gorsuch followed in the footsteps of his predecessor on the bench, Justice Scalia. The late justice was prominently critical of vague federal statutes, showing a willingness to strike down those laws in the face of what he called "a Congress that puts forth an ever-increasing volume of laws in general."
Gorsuch's conservative colleagues were not as sympathetic to the majority's vagueness argument, however. Chief Justice John Roberts, in an opinion joined by co-dissenters Kennedy, Alito, and Thomas, sided with a claim the government made in oral arguments, namely that the particulars of Johnson do not apply in Dimaya.
That, he wrote, is because they concern two different (albeit somewhat correspondent) definitions. Roberts pointed to the court's previous finding, in Leocal v. Ashcroft, that interpreted the same statute at issue in Dimaya with relative ease.
"The Court holds that the same provision we had no trouble applying in Leocal is in fact incapable of reasoned application. The sole justification for this turnabout is the resemblance between the language of §16(b) and the language of the residual clause of the Armed Career Criminal Act (ACCA) that was at issue in Johnson," Roberts writes.
The disparities between the two definitions, the majority retorted in its own opinion, amount to "the proverbial distinction without a difference."
The separate dissent of Justice Clarence Thomas stirs the pot of larger constitutional questions. Further grinding his ax against so-called "substantive" due process, Thomas wrote both to call on the court to reject "ordinary case" analysis (instead of considering all of the facts involved), and to question whether the "void for vagueness" doctrine can be reconciled with the original meaning of the Fifth Amendment's due process clause.
Thomas's decision marks yet another instance of the highly conservative justice's commitment to exacting originalism. But, while Justices Alito and Kennedy joined parts of Thomas's dissent, the section attacking "void for vagueness" saw no cosigners. This, combined with Gorsuch's departure from his conservative colleagues, captures the real disagreement throughout the court, right and left both.