09:43, May 03 56 0 abajournal.com

2018-05-03 09:43:05
Chemerinsky: What Sessions v. Dimaya means for immigration law

In June 2015, in Johnson v. United States, the U.S. Supreme Court declared unconstitutional the “residual clause” of the Armed Career Criminal Act. The Armed Career Criminal Act provides that if a person is convicted of a crime involving the use of a firearm and the individual has three or more earlier convictions for a “serious drug offense” or a “violent felony,” the prison term is a minimum of 15 years and a maximum of life. The act defines a violent felony as: “any crime punishable by imprisonment for a term exceeding one year … that—“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The Supreme Court has held that each of these clauses is to be treated as a separate category, and for the Armed Career Criminal Act to apply, a person’s crime must fit into one of the categories. The last category—“or otherwise involves conduct that presents a serious potential risk of physical injury to another”—is known as the residual clause. In Johnson v. United States, the Supreme Court, in an 8-1 decision, declared that this provision was unconstitutionally vague. Justice Antonin Scalia wrote for the court and concluded his majority opinion by declaring: “We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process.”

The issue in Sessions v. Dimaya was whether a provision of the Immigration and Nationality Act that uses language similar to the residual clause in the Armed Career Criminal Act is also unconstitutionality vague. The Immigration and Nationality Act renders deportable any alien convicted of an “aggravated felony” after entering the United States. Such an alien is ineligible for cancellation of removal, meaning that removal is a virtual certainty for an alien found to have an aggravated felony conviction.

The Immigration and Nationality Act defines “aggravated felony” by listing numerous offenses, often with cross-references to federal criminal statutes. This includes a provision that says that an aggravated felony includes “a crime of violence for which the term of imprisonment [is] at least one year.” A federal statute defines “crime of violence” as “(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, or “(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.”

This latter provision is known as the “residual clause,” and uses language virtually identical to that which the high court declared unconstitutionally vague in the Armed Career Criminal Act in Johnson. The San Francisco-based 9th U.S. Circuit Court of Appeals, relying on Johnson, declared this provision of the Immigration and Nationality Act unconstitutional. The Supreme Court heard oral argument last term, but announced June 26, 2017, that it was putting the case over for reargument, almost certainly because the justices were split 4-4.

The case was reargued this term, and the court, 5-4, declared this provision of the Immigration and Nationality Act unconstitutional. Justice Kagan wrote the opinion, almost all of which was joined by Justices Ginsburg, Breyer, Sotomayor, and Gorsuch. Justice Gorsuch did not join one section, but agreed with the central point of Justice Kagan’s opinion: The residual clause in the Immigration and Nationality Act is unconstitutionally vague.

The court rejected the government’s primary argument that the vagueness doctrine did not apply because the case did not involve a criminal statute. The court said that the law was clear that laws governing deportation and removal cannot be unduly vague. Justice Kagan explained: “But this court’s precedent forecloses that argument, because we long ago held that the most exacting vagueness standard should apply in removal cases.”

Thus, the question before the court was whether there is a meaningful difference between the residual clause in the Armed Career Criminal Act and that in the Immigration and Nationality Act. Justice Kagan carefully compared the statutory provisions and concluded that there was no meaningful difference. She concluded: “In sum, §16(b) has the same … ‘two features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague.’ 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. The result is that §16(b) produces, just as ACCA’s residual clause did, ‘more unpredictability and arbitrariness than the due process clause tolerates.’”

Justice Gorsuch wrote separately to express his view that the vagueness doctrine could be traced to English law and the Constitution as it was originally understood. He provides an originalist argument in favor of vague laws being struck down as violating due process and separation of powers. He wrote: “Although today’s vagueness doctrine owes much to the guarantee of fair notice embodied in the due process clause, it would be a mistake to overlook the doctrine’s equal debt to the separation of powers.” The latter is a novel justification for the vagueness doctrine.

Justice Gorsuch’s opinion, in part, is a response to Justice Clarence Thomas’s dissent which argued that striking down laws on vagueness grounds is inconsistent with the original understanding of the due process clause. Justice Thomas wrote: “I continue to harbor doubts about whether the vagueness doctrine can be squared with the original meaning of the due process clause—and those doubts are only amplified in the removal context.” Chief Justice John G. Roberts Jr. wrote a separate dissent in which he sought to distinguish Johnson, especially on the ground that it involved a criminal statute.

At the very least, Sessions v. Dimaya is quite important in the immigration context. The court reaffirms that laws concerning deportation and removal are to be subjected to the same vagueness analysis as criminal statutes. The court’s striking down the residual clause in the Immigration and Nationality Act will matter for many facing deportation.

More generally, Sessions v. Dimaya means that Johnson’s analysis is not limited to the Armed Career Criminal Act. Any laws, federal or state, that use language like the residual clause are to be declared unconstitutionally vague.

What should be made of Justice Gorsuch being the fifth vote for the majority? Does this suggest that he might not be as ideologically conservative as generally understood? I would caution against drawing such a conclusion from one case. In his first year on the court, Justice Gorsuch consistently has been with Justices Thomas and Alito on the issues that are ideologically defined. Also, the vagueness issue is not one necessarily defined by ideology. After all, it was Justice Scalia who for years sought to have the residual clause in the Armed Career Criminal Act declared unconstitutional, something he succeeded in doing in his majority opinion in Johnson. None of us should be surprised to see Justice Gorsuch following Justice Scalia’s path, even though it meant joining the liberal justices to create a majority in Sessions v. Dimaya.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).