Deportation Clause Curbed in Tight Supreme Court Reversal

WASHINGTON (CN) – Reining in the government’s deportation powers, the Supreme Court’s liberal minority managed to tip the scales Tuesday with a concurring vote from Justice Neil Gorsuch.

In contrast to a typical 5-4 split, the lead opinion here was joined by three justices, with Gorsuch concurring in judgment. Justice Clarence Thomas warned meanwhile in one of two powerful dissents that he would not follow the plurality down “rabbit holes.”

James Garcia Dimaya brought the underlying challenge to block his removal to the Philippines after pleading no contest in 2007 and 2009 to residential burglary charges.

Though Dimaya’s convictions qualified as aggravated felonies, triggering a clause of the Immigration and Nationality Act, Dimaya challenged the definition of “crime of violence” in the law as unconstitutionally overbroad.

He noted that no one was injured in the robberies he committed, and the Supreme Court agreed Tuesday that the law at issue suffers the same constitutional defect that the court rejected in the 2015 case Johnson v. United States.

While today’s precedent involves evaluating violent crimes for deportation purposes, the Johnson case involved sentencing defendants as armed career criminals based on their prior convictions.

The Supreme Court struck down the Armed Career Criminal Act’s so-called “residual clause” 8-1 in that case with Justice Antonin Scalia writing for the majority and Justice Samuel Alito dissenting.

Today’s ruling in Sessions v. Dimaya on the other hand is sharply divided, with Justice Elena Kagan announcing the judgment of the court.

“The government would condemn us to repeat the past — to rerun the old ACCA tape, as though we remembered nothing from its first showing,” she wrote, abbreviating Armed Career Criminal Act. “But why should we disregard a lesson so hard learned? ‘Insanity,’ Justice Scalia wrote in the last ACCA residual clause case before Johnson, ‘is doing the same thing over and over again, but expecting different results.’ We abandoned that lunatic practice in Johnson and see no reason to start it again.”

Kagan’s opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, while Justices Anthony Kennedy, Clarence Thomas and Alito joined a dissent Tuesday by Chief Justice Roberts.

Justice Gorsuch paved the way for the reversal by filing an opinion concurring in part and concurring in judgment.

Routinely compared with his predecessor on the court, the late Justice Scalia, Gorsuch opened his opinion by touting the maxim “vague laws invite arbitrary power.”

“Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death,” Gorsuch wrote. “The founders cited the crown’s abuse of ‘pretended’ crimes like this as one of their reasons for revolution. 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.”

Moving on to the specifics of Dimaya’s case, Gorsuch noted that the California burglary crime of which he was convicted “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?” Gorsuch continued. “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.”

The Roberts dissent clocks in at 15 pages, denying that the use of a commonplace substantial risk standard in the immigration law here gives rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.”

Whereas he said the court took pains in Johnson to clarify that the precedent should not be read to impart “an absolute rule,” Roberts found that the ramifications of the court doing the opposite now will be significant.

Justice Thomas meanwhile used 32 pages to insist that neither immigration clause nor the ACCA clause were unconstitutionally vague.

“The court’s decision today is triply flawed,” he wrote. “It unnecessarily extends our incorrect decision in Johnson. It uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling into question countless more). And it does all this in the name of a statutory interpretation that we should have discarded long ago. Because I cannot follow the court down any of these rabbit holes, I respectfully dissent.”

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