Gorsuch Joins Liberal Justices to Strike Down Deportation Law

Gorsuch with Justice Kagan who wrote the majority opinion.

In a move that will prompt shrieking among the racist  and misogynist GOP base and possible rants in the West Wing, Justice Neil Gorsuch - hardly my favorite justice - joined with the Supreme Court liberals and voted to strike down an arbitrary and vague anti-immigrant law.   The ruling was the second time that an overly vague anti-immigrant law has been struck down by the Supreme Court. As worded, the law that was in theory aimed at immigrants who commit violent crimes was being abused by Homeland Security and used to target immigrants committing non-violent crimes.  The New York Times looks at the welcomed ruling:

The Supreme Court on Tuesday struck down a law that allowed the government to deport some immigrants who commit serious crimes, saying it was unconstitutionally vague. The decision will limit the Trump administration’s efforts to deport people convicted of some kinds of crimes.

The vote was 5 to 4, with Justice Neil M. Gorsuch joining the court’s four more liberal members to form a bare majority, which was a first. Justice Gorsuch wrote that the law crossed a constitutional line.

“Vague laws,” he wrote in a concurring opinion, “invite arbitrary power.”

His vote in Tuesday’s case was not entirely surprising, though, as he has a skepticism of vague laws that do not give people affected by them adequate notice of what they prohibit.

Immigration advocates said the ruling could spare thousands of people from deportation.
“This decision is of enormous consequence, striking down a flawed law that applies in a vast range of criminal and immigration cases and which has resulted in many thousands of immigrants being deported for decades in violation of their due process rights,” said E. Joshua Rosenkranz, a lawyer for the immigrant at the center of the case.

The case, Sessions v. Dimaya, No. 15-1498, was first argued in January 2017 before an eight-member court left short-handed by the death of Justice Antonin Scalia. The justices deadlocked 4 to 4, and the case was re-argued in October after Justice Gorsuch joined the court.

The case concerned James Dimaya, a native of the Philippines who became a lawful permanent resident in 1992, when he was 13. In 2007 and 2009, he was convicted of residential burglary.

The government sought to deport him on the theory that he had committed an “aggravated felony,” which the immigration law defined to include any offense “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.”

In 2015, in Johnson v. United States, the Supreme Court ruled that a similar criminal law was unconstitutionally vague. Justice Elena Kagan, writing for the majority in Tuesday’s case, said the reasoning in the Johnson case also doomed the challenged provision of the immigration law.

She quoted at length from Justice Scalia’s majority opinion in Johnson, which said courts could not tell which crimes Congress had meant to punish.

She added that lower courts had been unable to apply the immigration law consistently.
“Does car burglary qualify as a violent felony?” she asked. “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.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined all of Justice Kagan’s opinion, and Justice Gorsuch most of it.

Near the end of her opinion, Justice Kagan again quoted Justice Scalia. “Insanity,” he wrote in a 2011 dissent, “is doing the same thing over and over again, but expecting different results.”

Justice Kagan said it was time to heed that advice. “We abandoned that lunatic practice in Johnson,” she wrote, “and see no reason to start it again.”