Sometimes a lawsuit is just a lawsuit and not another stage in an endless political and cultural war.
The recent Supreme Court case Sessions v. Dimaya, has drawn particular attention because Justice Neil Gorsuch sided with the majority decision, written by Justice Elena Kagan, and did not join the dissenting group of justices, which included Justices Kennedy, Thomas and Alito, as well as Chief Justice Roberts.
In the case, the court decided that the phrase “a crime of violence” was too vague to mandate deportation of someone convicted of burglary.
Pundits and the media were quick to read this as Gorsuch siding with the “liberals,” since, arguably, the case means that it may be harder for the government to deport some convicted felons. Gorsuch’s opinion received so much attention that some reports had President Trump complaining about Gorsuch becoming “too liberal,” apparently based on his vote in Dimaya.
But not so fast. As others have noted, Gorsuch’s decision actually followed in the footsteps of Justice Antonin Scalia in his interpretation of the statute. But more on that shortly.
The case depends on the interpretation of the clause “a crime of violence” under the Immigration and Nationalization Act (INA) to determine whether a lawful resident is subject to deportation. If the resident is convicted of such a crime, deportation is mandatory. If not, then deportation is not mandatory.
But what is “a crime of violence”? The statute lays out some examples but also says such a crime includes any “felony” that “involves substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Here, James Dimaya was convicted of burglary. Is that the kind of offense that has such as substantial risk of force against person or property?
In previous decisions, the court has held that judges must determine whether in the “ordinary” case a particular crime satisfies the standard. This review is important because if a normal person should know that a crime ordinarily involves substantial risk to person or property, then punishment can occur under the INA by deportation.
The court found that the phrase is unconstitutionally vague because it does not give people notice of what crimes, and what level of violence, might subject them to deportation. As the court says in this decision, the “void for vagueness” doctrine is deeply rooted in Anglo-America notions of due process and also “guards against arbitrary or discriminatory law enforcement by insisting that a statute provides standards to govern the actions of police officers, prosecutors, juries and judges.”
The dissenters, by contrast, argued that the statutory provision was in fact not vague. Chief Justice Roberts wrote that the law “asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense,” a concept that he found would not be intolerably vague to interpret or apply.
Gorsuch in this case follows the majority’s approach in his concurring opinion, finding that a person would not know in advance if a crime — here, burglary — would satisfy the violence test under the court’s “ordinary case” standard. Burglary, for Gorusch, could involve a range of facts, from entering an unoccupied home to assault inside the home, but need not ordinarily be accompanied by violence.
Other crimes are specified in the statute and so are not vague. Gorsuch adopts the view that criminal laws need to be clear to avoid misuse, and so ruled with the majority. He notes that it is a foundational point of due process that persons be given “fair notice” of what the law demands.
More important, Gorsuch argues in his concurrence that the vagueness doctrine supports the separation of powers:
“Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives.”
To write vague laws would relieve legislators of that hard duty and instead substitute the opinions of “a mere handful of unelected judges and prosecutors.” In such circumstances, the risks of abuse of power becomes very real. Laws are not generally meant to be riddles, especially ones that can deprive a person or liberty or, here, the abilities to reside in the United States.
As it happens, Justice Scalia was a big proponent of the vagueness doctrine, especially in the area of criminal law and its closely related legal doctrine, the so-called “rule of lenity,” which also requires ambiguous statutes to be read against the government and in favor of liberty.
Scalia thought that all laws needed to be clear to the ordinary citizen as to what is punishable. Some commentators thought Scalia’s attention to this doctrine was somehow inconsistent with his “conservatism.” But this is a simple error.
Scalia was not conservative or liberal in his interpretation of the Constitution, and he came to believe clear statutes were a legislative responsibility. The law should say what the representatives elected by the people voted they should say.
On the larger political question, Gorsuch “sided with the liberals” only in the sense that Scalia did in these kinds of cases. The late justice, and Gorsuch, believed the vagueness doctrine was a protection against misuses of state criminal power and so laws should be held to a strict standard for clarity. That position need not be conservative or liberal.