Needless to say, Trump’s rage-tweeting about this is going to be — mwah — magnifique. The odds of the him starting a #buyersremorse hashtag can’t be worse than 50/50, or maybe just a one-word tweet: “SOUTER!”
The good news for liberals is that they just pantsed POTUS with a decisive vote from his handpicked appointee on an immigration case, of all things. The bad news? The next appointee is now all but guaranteed to be Michael Cohen.
The case, Sessions v. Dimaya, involves a legal immigrant who came to the U.S. years ago. As an adult he was twice convicted of burglary. Federal law permits deportation of legal immigrants if they’re convicted of an “aggravated felony,” one type of which is a “crime of violence.” The Obama and Trump administrations both claimed that burglary can be categorized as a crime of violence because of the way the statute is worded: Any crime which “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” is a crime of violence, whether or not physical force was actually used. In deciding whether a crime “by its nature” is a crime of violence, courts are supposed to consider what the “ordinary case” involving that crime might look like. The Court’s four liberals found that unconstitutionally vague, the Court’s four conservatives said nope. Neil Gorsuch, tiebreaker, threw in with the liberals. What does “substantial risk” mean, he asked in his concurrence? And what would qualify as an “ordinary case” of burglary?
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. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. 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.
The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which 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? 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.
There’s a wrinkle here. Three years ago, in United States v. Johnson, the Supremes considered a similarly worded statute. In that case it was the Armed Career Criminal Act. If you were convicted of three prior “violent felonies” under that law, you got extra prison time. There, as here, in considering whether a felony was “violent,” courts were supposed to look at the hypothetical “ordinary case” involving that crime rather than the actual facts of the case in front of them and to decide if that ordinary case involved a serious potential risk of physical injury. Six justices concluded that that statute was unconstitutionally vague as well: The four liberals, John Roberts, and — ta da — Antonin Scalia, who wrote the majority opinion. Elena Kagan, who wrote today’s majority opinion, pointed back at Scalia’s opinion in Johnson and called the two cases effectively indistinguishable. If the law in Johnson was too vague for due-process purposes, the law in the Dimaya case is too vague also. Civil libertarians were also eager to point back to Scalia’s Johnson opinion, knowing that Gorsuch is destined to eat huge amounts of crap from the right for voting with the liberals in a deportation case:
Can’t call Gorsuch a RINO sellout for agreeing with conservatives’ favorite justice! But wait a sec. The Johnson case was about a citizen losing his liberty due to a vague criminal statute. The Dimaya case is about an immigration losing his right to remain in the United States due to a vague civil statute. Since the stakes are lower in civil matters, and since the federal government has discretion in setting rules for immigrants if they want to stay here, surely the feds deserve more leeway in interpreting vague statutory language here than they had in Johnson. Gorsuch responded to that:
A few pages later he even one-upped the Court’s liberals with this passage about due process in civil matters:
Gorsuch did make two concessions to the right, though. First, he noted, Dimaya was a legal immigrant. Once he was granted legal status, he was entitled to certain rights like due process. But that doesn’t mean that Congress *had* to grant him legal status. The legislature still enjoys the power to limit immigration. And presumably it also doesn’t mean that illegal immigrants would necessarily be entitled to all of the same due-process protections as legal immigrants. (You wouldn’t need to cite a “crime of violence” to deport an illegal, after all.) Second, all he’s ultimately saying here is that the law as written is too vague. Immigrants need more clarity about what does and doesn’t count as a deportable offense as a matter of basic notice. But that doesn’t mean Congress couldn’t write an even stricter law, declaring that any and all burglary convictions are grounds for deportation. Congress has to be clear, it doesn’t have to be “soft.”
None of that’s going to matter, though, in terms of popular perceptions of Gorsuch’s vote. Most righties believe as a basic matter that immigrants, particularly illegal immigrants, receive more legal protections than they’re constitutionally owed. Sovereignty means something, or it should. If the feds want to interpret “crime of violence” for deportation purposes to include non-violent burglaries they should get the benefit of the doubt in a contest with a non-citizen, particularly a non-citizen who’s twice been convicted of a serious felony. I don’t know that Gorsuch would disagree; he may be willing to give the feds some extra benefit of the doubt vis-a-vis immigrants, just not as much as they insist on. But a bottom-line kind of guy like Trump won’t care about that. He is, as has been said many times in many contexts, a “transactional” person. His transaction with Gorsuch, or so he surely believed, was that Trump would put him on the Court and Gorsuch would protect Trump’s core priorities in return. An embarrassing unfavorable ruling on immigration will hit POTUS where he lives, especially when he’s already disgusted with so many of his other legal appointees for not doing more to carry out his wishes.