WASHINGTON (CN) – Setting the stage for a Ninth Circuit-aligned ruling, Justice Neil Gorsuch was critical Monday of an expansive view of violent crimes that trigger mandatory deportation.
Confirmed just this past April to the bench, the Trump appointee spoke out in particular against a suggestion by the attorney arguing for the government that listing every crime that could result in mandatory deportation would be “impossible” for Congress to do.
“Really,” Gorsuch asked at oral arguments. “Even when it’s going to put people in prison and deprive them of liberty and result in deportation, we shouldn’t expect Congress to be able to specify those who are captured by its laws?”
James Garcia Dimaya, the immigrant at the heart of this morning’s case, is facing deportation to the Philippines after pleading no contest to two burglaries in 2007 and 2009.
Dimaya did not physically hurt anyone during the robberies but has been entangled in a section of the Immigration and Nationality Act that mandates the deportation of people who are convicted of aggravated felonies.
The government is fighting for a reversal now after the Ninth Circuit found in 2015 that the INA’s so-called residual clause was unconstitutional.
Deputy U.S. Solicitor General Edwin Kneedler faulted the lower court for applying the same vagueness standard to both criminal cases and civil immigration law.
“The immigration laws have always been enforced through a broad delegation of authority to the executive branch, reflecting the fact that immigration and immigration enforcement are closely related to the national security and foreign relations of the United States,” Kneedler said.
Kneedler also warned striking down section 16(b) would hurt the government’s ability to deport people for other crimes like kidnapping where violence is an active threat.
Gorsuch’s problems with Kneedler’s argument were twofold. He first questioned how solid the line between criminal and civil laws really is, noting some penalties attached to civil laws like deportation or civil forfeiture carry far stiffer penalties than some criminal ones and that the Fifth Amendment’s due process clause does not distinguish between criminal and civil penalties.
Gorsuch later raised questions about what the interpretation of section 16(b) would mean for the separation-of-powers doctrine, as a judge would need to hear a great amount of statistical and expert evidence to determine whether a particular crime is likely to lead to physical force.
Comparing this work to the gathering of evidence by legislators to write a law, Gorsuch warned that the provision’s vagueness would force the judiciary into a role reserved for Congress.
“I would probably want to have statistics and evidentiary hearings and hear experts on that question,” Gorsuch said. “And that sounds to me a lot like what a legislative committee might do. And if I can’t distinguish my job from a legislative committee’s work, am I not verging on the separation-of-powers problem?
Dimaya’s attorney, Joshua Rosenkranz, seized on Gorsuch’s skepticism, arguing that section 16(b) is too vague for the serious punishment of permanent deportation.
“Justice Gorsuch is right,” said Rosenkranz, an attorney at the New York firm Orrick, Herrington and Sutcliffe. “This is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground. Congress has written a statute that makes it impossible for ordinary citizens or for law enforcement or for immigrations to figure out what the law is, and Congress has delegated that function to them.”
Justice Samuel Alito prodded Rosenkranz about where the line for unconstitutional vagueness should fall, wondering whether a person could be prevented from receiving a teaching license if convicted of a crime that falls under section 16(b).
“We might do a wonderful job of pruning the United States Code if we said that every civil statute that is not written with the specificity that is required by criminal statute is unconstitutionally vague, we could boil that down a lot, but that’s what I’m asking,” Alito said. “Is that what you are arguing?”
Gorsuch eventually stepped into the argument, proposing a distinction borrowed from the Fifth Amendment’s due process clause.
“What do you think about this line: life liberty and property,” Gorsuch said. “It’s right out of the text of the due process clause itself.”
Dimaya’s case is actually a holdover from the last term. The court first heard oral arguments on the case in January, when the bench was still one member short after the death of Justice Antonin Scalia a year earlier.
In a case seen as the precursor to Dimaya’s challenge, the Supreme Court found a provision in the Armed Career Criminal Act as unconstitutionally vague in the 2015 case Johnson v. United States.
Scalia, to whom Gorsuch has often been compared, authored the opinion in Johnson.