A view of the Supreme Court building in Washington. (Jonathan Ernst/Reuters)
Opinion writer

To an inappropriate degree, both advocates and opponents of President Trump’s immigration approach looked to Sessions v. Dimaya to get a read on the Supreme Court’s reaction to the administration’s policies. The administration lost this one, with the newest justice, Neil Gorsuch, concurring with the four liberal justices as the fifth vote against the administration. But the Supreme Court does not simply propound on policy questions; it decides cases based on specific facts and applicable laws (including the Constitution). It is therefore important to see what the court actually decided.

Justice Elena Kagan, writing for the majority, set out the basic facts: “A native of the Philippines, [James] Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first degree burglary under California law. See Cal. Penal Code Ann. §§459, 460(a). Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a ‘crime of violence'” and therefore pursuant to the Immigration and Nationality Act could be deported. In particular, the court looked at a catch-all clause, 18 U.S.C. §16(b),  that says “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” constitutes a crime of violence.

Under what is called the “void for vagueness” doctrine, a criminal or other statute that enacts punishment (including deportation) cannot be an open-ended mandate for the government to catch anyone it pleases. As a matter of due process under the Fifth Amendment, potential criminal defendants need to know what conduct is covered and what is not. There is no point to written statutes if they can essentially say “and whatever else the government sees fit.”

Unfortunately for the Trump administration, the “in the course of” language in the Immigration and Nationality Act, the court found, “understood in the normal way, includes the conduct occurring throughout a crime’s commission — not just the conduct sufficient to satisfy the offense’s formal elements. The Government agrees with that construction, explaining that the words ‘in the course of’ sweep in everything that happens while a crime continues.” The court found 16(b) just as vague as the law at issue in a prior case using very similar language. Kagan pointed out the problem in practical terms:

A host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. Does car burglary qualify as a violent felony under §16(b)? Some courts say yes, another says no. What of statutory rape? Once again, the Circuits part ways. How about evading arrest? The decisions point in different directions. Residential trespass? The same is true. Those examples do not exhaust the current catalogue of Circuit conflicts concerning §16(b)’s application.”

Gorsuch, as he is wont to do, began his concurrence with a didactic explanation of the purpose of the “void for vagueness” doctrine:

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. … 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.

As he explained, “Perhaps the most basic of due process’s customary protections is the demand of fair notice.” After a lengthy discourse on the vagueness doctrine (which is not a controversy in the case) and a discussion of civil penalties, he eventually reached the same result as the plurality decision:

The 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. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statute’s text, structure, or history will yield a clue. Nor does the statute call for the application of some preexisting body of law familiar to the judicial power. The statute doesn’t even ask for application of common experience. Choice, pure and raw, is required. Will, not judgment, dictates the result.

Gorsuch further warns, “Vagueness doctrine represents a procedural, not a substantive, demand. It does not forbid the legislature from acting toward any end it wishes, but only requires it to act with enough clarity that reasonable people can know what is required of them and judges can apply the law consistent with their limited office.”

So what to make of this?

First, one can understand why the other justices might get annoyed (as has been reported) by Gorsuch’s long-winded lessons. He strays far and wide, showing (if not showing off) his knowledge of history. Gorsuch is a youngish man, so the court had better learn patience: The justices will need it in the decades ahead.

Second, in reading the case, I immediately thought of the “sanctuary cities” regulations that cities and states have challenged. Regulations that threaten to pull millions of dollars in funding do not even give a definition of “sanctuary city.” One suspects that if those cases reach the Supreme Court, the administration will face an uphill fight.

Third, Gorsuch may be a hero to the right, but being a stickler for due process leads to results sometimes that conservatives like and sometimes that progressives like. Do not assume that Gorsuch, or any judge, is going to decide cases to match the policy preferences of the president who appointed him or her. That is the way courts are supposed to operate, and in fact, it is what the “rule of law” actually means in practice.

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