Law & the Courts

Gorsuch Was Wrong to Rescue a Felonious Alien

(Jonathan Ernst/Reuters)
Who will decide which laws are too vaguely worded to be constitutional? By that standard, the courts could invalidate a vast number of laws.

Some conservative analysts are unwisely praising Supreme Court Justice Neil Gorsuch for joining the court’s four committed liberals to keep a felonious immigrant from deportation.

These estimable analysts, including columnist George Will and the Wall Street Journal editorial board, give too much credit to Gorsuch’s elegant concurring opinion, but far too little credit to the powerful dissenting opinions by Justice Clarence Thomas and the other three conservative (or sometime-conservative) justices.

The rulings by Gorsuch and the liberals could let the high court snatch too much authority, with too little justification, to invalidate too many laws or portions of laws duly passed by Congress and the president. They involve a misapplication of a 2015 precedent that itself was of dubious merit. And in the name of legal clarity, they could throw much of the U.S. Criminal Code into confusion.

In the Sessions v. Dimaya case decided last week, the liberals and Gorsuch applied a somewhat controversial doctrine known as “void for vagueness,” meaning that laws not clear enough to be predictably applied should be declared constitutionally invalid.

Dimaya involved a federal law permitting the government to deport any legal immigrant convicted of a “crime of violence” — partly defined in the criminal code as “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.”

Trial judges are asked to decide if a particular crime “by its nature” involves the “substantial risk” of “physical force.” The judge therefor has some discretion, but not a remarkable amount. The terminology is not abstruse: Most ordinary non-lawyers would have little trouble deciding whether an incident involved the substantial risk of force.

The problem, said the court majority, is that the two convictions of the (otherwise legal) immigrant in question were for first-degree burglary under California law, which at its limits can apply “to everyone from armed home intruders to door-to-door salesmen peddling shady products.” That, they said with some logic, is too vague.

Where, pray tell, is a broad-based ‘laws-shall-not-be-vague’ clause in the Constitution?

Answering this, Chief Justice John Roberts noted court precedent: “Courts should exclude those atypical cases in assessing whether the offense qualifies.” In other words, just because a door-to-door salesman might be convicted of first-degree burglary (an “atypical case”) doesn’t mean that a judge will ordinarily be confused about whether most first-degree burglaries in California amount to acts that involve a substantial risk of physical force.

Justice Thomas goes even further. He has questioned the due-process void-for-vagueness doctrine as “lacking any basis in the Constitution.”

Any educated layman can find the contract clause, the First Amendment, or the commerce clause in the Constitution, but where, pray tell, is a broad-based “laws-shall-not-be-vague” clause? And to the very narrow extent that Thomas admits that the Constitution does inherently adopt English common-law strictures against vagueness, Thomas argues that those strictures “must be limited to cases in which the statute is unconstitutionally vague as applied to the person challenging it.”

In other words, even if an individual conviction or penalty runs afoul of constitutional protections for “fair notice” of what the law actually means, courts should not invalidate the entire law or provision that in most cases is readily understood and applied in a commonsense way.

Congress regularly writes laws with provisions far more vague than the definition of “crime of violence” at issue in Dimaya. It might be bad practice for Congress to pass vaguely worded laws, but that doesn’t mean such laws run afoul of the Constitution.

The Court’s own standard for declaring a law unconstitutional is vaguer than the law itself that it just invalidated.

Thomas argued that the legal theory explained by Gorsuch last week could lead the high court to invalidate at least “dozens of federal and state criminal laws,” just to start. Upon what rule or guideline is the Supreme Court supposed to decide which laws or provisions are unconstitutionally vague? Gorsuch and the liberals give no good answer.

Here, the Court’s own standard for declaring a law unconstitutional is vaguer than the law itself that it just invalidated.

As recently as 2008, a solid 7–2 majority of the Supreme Court refused to so broadly declare laws void for vagueness. In United States v. Williams, the Court ruled that a statute is unconstitutionally vague only if it wholly “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

Moreover, as Justice Samuel Alito argued in another void-for-vagueness case, “these concerns have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question.”

In other words, if someone knows he is breaking the law and does so anyway, the Constitution does not obviously protect him from a particular punishment just because, in retrospect, he claims the law was too vague about what the punishment would be. The Supreme Court repeatedly has ruled that trial judges enjoy fairly broad discretion anyway when sentencing convicts, so a sentence is unconstitutional only if it is clearly discriminatory or “cruel and unusual.”

All non-citizen immigrants, legal or otherwise, know they risk deportation if convicted of a serious felony. The history of American law and the very nature of national sovereignty make clear that non-citizens living here do so as guests, at the pleasure of, and subject to, American laws. If they break the law — and in Dimaya, the lawbreaking was clearly determined — then Congress has every authority to commission the judicial and executive branches to revoke their guest status, as long as they enjoyed the same procedural court rights any citizen does.

With all this said, why would Will and the Wall Street Journal side with Gorsuch and the liberals over the four other conservatives here? It seems as if they fell prey to some eloquent misdirection from Gorsuch.

Will says that when Congress writes laws too vaguely, “the crux of America’s constitutional architecture, the separation of powers, is implicated.” He is advocating, as most jurisprudential conservatives correctly do, something known as the “nondelegation doctrine.” This doctrine holds that if Congress tries to avoid responsibility by writing laws that effectively transfer (or “delegate”) typical legislative duties to executive or judicial branches of government, those laws should be invalidated because they violate the essential separation of powers evident throughout the Constitution.

Will is right, in theory — and Gorsuch spends two pages of his 19-page concurrence discussing “these structural worries.” The problem here is that those two pages involve a merely theoretical discussion that is a red herring in this particular case.

As Justice Thomas writes, “I agree that the Constitution prohibits Congress from delegating core legislative power to another branch.” But, quite specifically, the immigrant and his lawyers openly say, “‘There is no delegation question’ in this case.

Read that again: Not even the would-be deportee claims that the alleged “vagueness” in play here involves an improper delegation of power. Despite what Will and the Journal assert, this is not a test case for the admirable nondelegation doctrine. It’s a simple case of Congress giving judges entirely customary leeway to apply ordinary, commonsense understandings (what, as Thomas wrote, “any fool would know”) about what constitutes a crime where “violence” is seriously risked.

Gorsuch made some of the right arguments, but for the wrong case. The precedent he helped set could be used by liberal judges to invalidate what Thomas says are “countless” laws enacted by our government’s elected branches, arbitrarily picking and choosing which laws are too “vague” for their progressive policy agendas.


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