Latest Scholarship

October 3, 2017

Argument analysis: Faithful to Scalia, Gorsuch may be deciding vote for immigrant

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Yesterday, the first day of the October 2017 term, the justices heard oral argument in Sessions v. Dimaya, a void-for-vagueness challenge to a criminal-removal provision of the U.S. immigration laws. As I explained in my preview of the case, the U.S. Court of Appeals for the 9th Circuit had relied on the Supreme Court's opinion in Johnson v. United States to find unconstitutionally vague a provision making a "crime of violence," as defined in the immigration statute's "residual clause," 18 U.S.C. § 16(b), an "aggravated felony" subjecting an immigrant to mandatory removal. In so doing, the court of appeals rejected an immigration court's conclusion that James Garcia Dimaya, neither of whose two burglary convictions involved violence, had been convicted of a "crime of violence" and had to be removed from the United States.

The case was first considered last term, when the court was short-handed following the death of Justice Antonin Scalia. At oral argument last January, the justices seemed willing to test a provision of the immigration statute, a civil statute, even though vagueness challenges have more often been successful with respect to criminal laws. However, they appeared divided as to whether this case is distinguishable from Johnson and whether Section 16(b) is void for vagueness, and they restored the case to their calendar for reargument this fall. Consequently, all eyes were on Scalia's replacement, Justice Neil Gorsuch, yesterday.

This oral argument seemed to have a more definitive direction than the first one. And the tide seemed to favor Dimaya.

Arguing for the United States, Deputy Solicitor General Edwin Kneedler again defended the constitutionality of Section 16(b), as he had in January. He first contended that the vagueness test as applied to an immigration law is not as rigorous as for criminal laws, a contention that Justice Ruth Bader Ginsburg quickly questioned. Justice Sonia Sotomayor asked whether a vague statute might result in arbitrary enforcement, and noted that less than 10 percent of burglaries involve an occupied home, which might be expected to increase the potential for violence. Justice Elena Kagan expressed similar concerns.

Not long into the argument, Gorsuch began active questioning and seemed ready and willing to apply Scalia's opinion in Johnson to this case. In language that Scalia would have loved, Gorsuch noted that the due process clause does not include the criminal/civil distinction embraced by the government: "I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property. It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right of self-incrimination, for example."

On the defensive throughout, Kneedler emphasized that the federal government traditionally has enjoyed broad discretion in the enforcement of the immigration laws.

Ginsburg noted that the government could have sought to remove Dimaya under another provision of the statute, which allows for removal for a conviction of a "crime of moral turpitude." Justice Samuel Alito then questioned whether "crime of moral turpitude" was any less vague than "crime of violence."

Gorsuch asked how far judges should be allowed to go in defining the "ordinary case" under a criminal statute to determine whether it is a "crime of violence" for purposes of Section 16(b). He quipped: "How am I supposed to determine what the ordinary case is? Should I bring in some experts and have an evidentiary hearing?"

Later in the argument, Gorsuch threw Kneedler what might have appeared to be a life preserver, asking whether vagueness doctrine might be "a subspecies of substantive due process." Kneedler said that that indeed was the case. Gorsuch then pounced, saying that the doctrine was more procedural than substantive, because Congress could avoid a vagueness challenge by passing a more specific statute.

Representing Dimaya, E. Joshua Rosenkranz, who also had argued the case last term, defended the 9th Circuit's conclusion that Section 16(b) was unconstitutionally vague. Seeing an ally in Gorsuch, Rosenkranz began as follows: "Justice Gorsuch is right. [Determining a crime of violence] is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground."

Rosenkranz argued primarily that the residual clause was unconstitutionally vague under Johnson. When questioned by Alito about how to determine when a civil statute is unconstitutionally vague, Rosenkranz emphasized that the statute at issue is not just any civil statute, but a removal statute. And, he maintained, the Supreme Court said in Jordan v. DeGeorge that vagueness standards apply to deportation statutes.

Rosenkranz discussed the standard for vagueness in civil statutes set forth in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., which dealt with a business licensing ordinance regulating the sale of products that might be used for illicit drugs, and which made it clear that a civil statute with "severe consequences" could be challenged for vagueness. Both Gorsuch and Sotomayor wondered aloud how a court would go about defining "severe consequences." Rosenkranz emphasized that the consequences of removal are unquestionably severe - "banishment" and "exile" - and "on par with a criminal punishment." Alito worried about how to draw the line between "severe" and lesser consequences. Ever the textualist, Gorsuch quickly responded and suggested that the line should be "life, liberty, or property," language found in the due process clause.

Justice Anthony Kennedy asked whether Congress could pass a law allowing an immigrant convicted of a crime to be deported in the discretion of the U.S. attorney general, if he or she determines that the presence of the alien is inconsistent with the best interests of the United States. Rosenkranz said such a statute would be unconstitutionally vague.

In response to a question from Gorsuch, Rosenkranz replied that vagueness analysis involves procedural, not substantive, due process, a proposition with which Alito disagreed.

Ginsburg asked why if, as the Supreme Court has held, "crime of moral turpitude" is not unconstitutionally vague, "crime of violence" would be. After Rosenkranz responded that "moral turpitude" has been delineated over "two centuries' worth of law," Kagan added that "in a crime of moral turpitude, we don't have to consider what the ordinary case is, do we?"

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court. Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia's opinion in Johnson to Dimaya's case - maybe even more faithfully than Scalia himself would have done. And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute's residual clause.