Originally published by Politico
President Donald Trump’s only pick for the Supreme Court, Justice Neil Gorsuch, joined with the court’s liberal justices in a 5-4 ruling for the first time Tuesday, providing the swing vote for an opinion that will make it more difficult to deport immigrants who have committed violent crimes.
In a decision likely to irritate the White House, Gorsuch agreed with his liberal colleagues that a clause in federal law allowing deportation of foreigners found guilty of “a crime of violence” is unconstitutional because it is overly vague.
“What does that mean?” Gorsuch asked in a concurring opinion. “Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? 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,” Gorsuch added.
The law does add a bit more definition to the standard, covering crimes that include actual violence, attempted violence or a threat of violence, but goes on to sweep in crimes that involve “a substantial risk that physical force against the person or property of another.”
Despite the potential political fallout from the ruling Tuesday, Gorsuch is positioning himself as an heir to the legal legacy of the conservative jurist he replaced: Justice Antonin Scalia.
Scalia wrote a similar opinion for the court in 2015, striking down a parallel provision that imposed 15-year minimum mandatory prison sentences on criminals who’d committed three “violent felonies.”
The immigration case ruled on Tuesday, Sessions v. Dimaya, was first argued at the Supreme Court in January 2017, three days before Trump’s inauguration. The court—shorthanded due to Scalia’s death and Senate Republicans’ refusal to consider President Barack Obama’s nominee Merrick Garland—apparently deadlocked.
The case was reargued before the justices last October, once the court was back to full strength.
The Obama administration took the issue to the Supreme Court after a 9th Circuit Court of Appeals panel ruled that the clause was too vague to be used to deport James Dimaya, an immigrant from the Philippines who was convicted of two burglaries deemed to be aggravated felonies under the law even though there was no evidence of violence.
The Trump administration picked up the case last year, advancing the same argument that because immigration proceedings are not criminal, constitutional due process doesn’t require that the language be as specific.
Gorsuch didn’t buy that.
“If the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments,” the court’s newest justice wrote.
A Justice Department spokesman did not immediately respond to a request for comment on the ruling and whether the administration intends to ask Congress to rewrite the legal provision the high court struck down Tuesday.
One analyst said Gorsuch’s action in the case should not come as a surprise, even if the Trump administration was hoping for a different result.
“He signaled pretty clearly he was leaning this way at argument, and it’s deeply consistent with Justice Scalia’s majority opinion in Johnson,” the career criminal case, said University of Texas law professor Stephen Vladeck. “As for the White House, they may well be pissed, but this is Gorsuch’s formalist textualism—and the real problem lies with the statute.”
A legal conservative close to the White House said Gorsuch’s take on the case was consistent with his long-abiding concern about unchecked power in the hands of government bureaucrats, whether they’re regulating businesses or the status of immigrants.
“He’s sort of following the Scalia tack on this,” said the conservative attorney, who asked not to be named. “You’ve got a penalty being carried out by an administrative process and he would impose a higher burden [where] life, liberty or property are at issue.”
One open question is whether Gorsuch’s willingness to apply a more rigorous standard in the deportation case decided Tuesday could carry over to other immigration-related cases, including the one on Trump’s travel ban set to be argued before the court next week.
That seems unlikely based on Gorsuch’s stance last June when the Supreme Court allowed an earlier version of Trump’s travel ban policy to take partial effect. Gorsuch joined with the high court’s most conservative members, Justices Clarence Thomas and Samuel Alito, in an opinion that said the travel ban should have been put into full force, despite lower court rulings putting it on hold.
“It’s probably too hasty to conclude that Gorsuch’s decision here somehow foretells his decision in other immigration cases. It’s a very statute-bound analysis,” the conservative adviser said
Justice Elena Kagan wrote for the court’s liberals Tuesday, arriving at the same conclusion at Gorsuch via somewhat different reasoning.
The court’s four other Republican justices dissented.
The new ruling does not strip the federal government entirely of its ability to deport immigrants convicted of crimes.
A list of specific crimes and categories of crimes that can lead to deportation remains on the books, as does the provision covering crimes involving actual or attempted violence or threats. But the so-called “residual clause” intended as a catch-all is dead—at least unless or until Congress revises it.