What you don’t know about why Justice Gorsuch joined liberals to make deportations harder

DCNFKevin Daley, DCNF

(BRENDAN SMIALOWSKI/AFP/Getty Images)

The U.S. Supreme Court struck down a provision of federal law Tuesday that allows the deportation of foreign nationals convicted of certain felonies.

Justice Neil Gorsuch joined with the court’s four liberals to strike down the law, in keeping with longstanding conservative anxieties about sweeping and imprecise grants of power to bureaucrats and regulators.

Justice Elena Kagan wrote the opinion for a five-member majority.

At issue in the case was a provision of the Immigration and Nationality Act (INA) that permits the deportation of any alien convicted of an aggravated felony. The law lists a number of convictions that qualify as “aggravated felonies,” then includes a catchall provision for “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.”

James Dimaya, a lawful permanent resident, was slated for deportation to the Philippines following two convictions for first-degree burglaries. An immigration judge ordered his removal under the INA’s catchall provision, as first-degree burglary does not appear on the list of qualifying offenses. In turn, Dimaya challenged the provision, arguing it is unconstitutionally vague.

In a 2015 decision called Johnson v. U.S., the high court struck down as unlawfully vague a section of the Armed Career Criminal Act (ACCA) that defined a “violent felony” as, among other things, “conduct that presents a serious potential risk of physical injury to another.” Since then, litigants have brought a number of vagueness challenges to similar provisions of federal law.

The late Justice Antonin Scalia wrote the Johnson decision.

Dimaya argued the catchall section of the INA was substantially similar to the statute the court overturned in Johnson. The 9th U.S. Circuit Court of Appeals agreed, prompting the U.S. Department of Justice’s (DOJ) appeal to the Supreme Court. The DOJ argued the 9th Circuit’s review of the statute was excessive, since civil laws are only considered vague if they are “unintelligible.” Deportation proceedings are civil, not criminal matters.

In her opinion for the court, Kagan rejected that argument, finding the grave nature of deportation warrants heavy judicial scrutiny. She then explained the INA’s catchall provision has precisely the same elements as the unconstitutionally vague section of the ACCA, minor linguistic differences notwithstanding.

“Johnson is a straightforward decision, with equally straightforward application here,” she wrote, elsewhere noting the statute “invited arbitrary enforcement, and failed to provide fair notice.”

Gorsuch wrote a separate opinion concurring in the judgment, in which he argued vagueness challenges to civil laws should be treated as seriously as challenges to criminal laws. Many civil penalties — and not just deportation — are in his view so sweeping that courts should police aggressively for vagueness, and abandon the “unintelligible” standard currently in use.

“Grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions,” he wrote. Such sanctions include “confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.”

His opinion largely tracks the growing distrust in conservative legal circles of draconian penalties assessed through administrative processes, and is part of a growing campaign to challenge economic regulations on vagueness grounds.

Chief Justice John Roberts wrote the primary dissent, joined by Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.

The Justice Department said Congress should quickly amend the INA to ensure a wider range of criminal convictions qualify for deportation.

“We call on Congress to close criminal alien loopholes to ensure that criminal aliens who commit those crimes—for example, burglary in many states, drug trafficking in Florida, and even sexual abuse of a minor in New Jersey—are not able to avoid the consequences that should come with breaking our nation’s laws,” Justice Department spokesman Devin O’Malley said after the ruling.

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