On Tuesday, the Supreme Court ruled that part of a federal law used to deport immigrants who have been convicted of aggravated felonies is unconstitutionally vague, and thus violates the Fifth Amendment’s Due Process Clause. The case, Sessions v. Dimaya, concerns the Immigration and Nationality Act (INA).

The INA defines “aggravated felony” by listing types of offenses, often cross-referencing federal criminal statutes. One type of offense listed is a “crime of violence… for which the term of imprisonment is at least one year.” 18 USC § 16 provides the definition of “crime of violence” for the purposes of the INA. § 16 consists of two clauses, which are commonly referred to as the elements clause and the residual clause. The former states that “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” while the latter states that “(b) 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.”

The respondent in the case, James Dimaya, is a lawful permanent resident with two convictions of first-degree burglary under California law. The DOJ determined that burglaries constituted “crimes of violence,” and that Dimaya was thus subject to deportation under the INA. The immigration court had ruled that Dimaya was deportable based on the crime of violence grounds.

Dimaya appealed. While his appeal was pending, the Supreme Court ruled in Johnson v. United States. the residual clause of another law, the Armed Career Criminals Act (ACCA), unconstitutionally vague, and thus in violation of the Fifth Amendment’s Due Process Clause. The Ninth Circuit, citing the Johnson decision as precedent, ruled the residual clause of the INA unconstitutionally vague as well.

Now, the Supreme Court, in a 5-4 decision that has Justice Neil Gorsuch siding with the liberal wing of the Court, has affirmed the Ninth Circuit’s ruling.

Kagan’s Opinion for the Court

Justice Elena Kagan wrote for the majority in Dimaya. As Kagan explains:

I[n sum, §16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague.” Id., at ___ (slip op., at 5). It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently-large degree of risk. Id., at ___ (slip op., at 4). The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.

Here Kagan reasons that 18 USC § 16’s residual clause is unconstitutionally vague for the same reasons that the ACCA’s residual clause was:

1. It requires that a court imagine what a crime entails in an “ordinary case.” (In reference to this point, Kagan asks, “We can as well repeat here what we asked in Johnson: How does one go about divining the conduct entailed in a crime’s ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct?“) and
2. 16(b), much like the ACCA, requires still an even further degree of abstraction – it requires the judge to determine whether the imagined “ordinary case” presented a sufficient – but still undefined — degree of risk.

Kagan’s opinion was joined by Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch, in part.

Gorsuch’s Concurring Opinion

Gorsuch concurs with the majority that the residual clause of § 16 is unconstitutionally vague. “California burglary,” he writes, “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?” Where Gorsuch diverges from Kagan and the majority, however, is in his reasoning. Gorsuch reasons that the “ordinary case” abstraction that the INA requires on the part of a judge violates the fair notice standard – a standard set by the… Share on X The fair notice standard holds a law in violation of the Due Process Clause if it does not give an individual “fair notice” of what actions it criminalizes. Gorsuch writes with respect to 18 USC § 16, “[t]he implacable fact is that this isn’t your everyday ambiguous statute. It leaves the people to guess about what the law demands—and leaves judges to make it up.”

Roberts’s and Thomas’s Dissents 

Chief Justice Roberts dissented on the grounds that the Dimaya case is meaningfully distinct from the ACCA under scrutiny in Johnson. In particular, Roberts argues that §16(b) is less vague in three ways:

1. Regarding how to estimate the risk a crime poses 16(b) asks for a “commonsense inquiry of simply, “risk,” while the ACCA residual clause required estimate of “serious potential risk;”
2. 16(b) requires in the risk analysis that the judge consider the risk of “physical force” against another person or property be likely, while the ACCA only required consideration of the risk that “injury will result from a person’s conduct;” and
3. 16(b) proposes a “temporal limit” that the risk of physical force arises “in the course of committing the offense.”

Roberts was joined by Justices Kennedy, Thomas, and Alito.

Thomas, with whom Alito and Kennedy joined in part, also dissented. He agrees with Roberts that §16(b) is not unconstitutionally vague. He diverges from Roberts, however, in arguing that the vagueness doctrine is not consistent with the original meaning of the Due Process Clause. “Section 16(b), as incorporated by the INA, cannot violate th[e Due Process] Clause,” Thomas reasons, “ unless the following propositions are true: The Due Process Clause requires federal statutes to provide certain minimal procedures, the vagueness doctrine is one of those procedures, and the vagueness doctrine applies to statutes governing the removal of aliens. Although I need not resolve any of these propositions today, each one is questionable.”

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While Gorsuch’s alignment with the liberal wing of the Court may seem surprising, it is consistent with his originalist philosophy, as well as that of his predecessor, Justice Antonin Scalia. Share on X Justice Scalia also sided with the liberal wing of the Court in Johnson v. United States. Writing for the majority In Johnson, Scalia argues: “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.” Gorsuch, in his concurring judgement in Dimaya, echoes his originalist counterpart.

The Trump administration’s focus on immigration enforcement means the Court will likely intervene in more criminal removal cases in the near future. The Roberts Court immigration record has been mixed thus far, with the narrow majority ruling to curb immigrants’ rights in some cases, such as Jennings v. Rodrieguez, and expanding immigrants’ rights in others, as they did this week in Dimaya.