Supreme Court Justice Neil Gorsuch, whose confirmation President Donald Trump has long touted as one of his crowning achievements, cast the deciding vote against the administration Tuesday on an issue long at the center of the president’s agenda: deporting immigrants who commit crimes in the U.S.
The ruling was the first in which Gorsuch sided with the court’s liberal justices in a 5-4 decision, providing the swing vote for a result that could make it more difficult to deport immigrants who have committed violent crimes.
In a decision that ruffled feathers at the White House, Gorsuch agreed with the court’s four Democratic-appointed justices that a clause in federal law allowing the deportation of foreigners found guilty of “a crime of violence” is unconstitutional because it is overly vague.
“What does that mean?” Gorsuch asked in a concurring opinion. “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,” Gorsuch added.
The law does add a bit more definition to the standard, covering crimes that include actual violence, attempted violence or a threat of violence, but goes on to sweep in crimes that involve “a substantial risk [of using] physical force against the person or property of another.” That last portion requiring an assessment of how likely a crime is to involve violence is too vague to be enforced, the high court ruled Tuesday.
Some seven and a half hours after the ruling came down, Trump offered his reaction on Twitter, overlooking — for the momen t— his appointee’s role in the decision. Instead, the president, who was at his Mar-a-Lago resort in Florida for meetings with the Japanese prime minister, called for fast action by Congress to tighten the rules.
“Today’s Court decision means that Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons,” wrote Trump. “This is a public safety crisis that can only be fixed by…Congress – House and Senate must quickly pass a legislative fix to ensure violent criminal aliens can be removed from our society. Keep America Safe!”
The Department of Homeland Security offered some criticism of the high court‘s action, saying it made Americans “more vulnerable.“
“Today‘s ruling significantly undermines DHS’s efforts to remove aliens convicted of certain violent crimes, including sexual assault, kidnapping and burglary, from the United States,“ DHS spokesman Tyler Houlton said. “By preventing the federal government from removing known criminal aliens, it allows our nation to be a safe haven for criminals and makes us more vulnerable as a result.“
A Justice Department spokesman did not directly address the justices‘ opinions or legal rationale, but emphasized that the administration wanted Congress to step in to make it easier to deport immigrants who commit crimes.
“The Justice Department believes that certain crimes committed by an illegal alien, visa holder, or an alien otherwise granted lawful status in the United States, should trigger their removal,“ department spokesman Devin O’Malley said. “Therefore, we call on Congress to close criminal alien loopholes to ensure that criminal aliens who commit those crimes — for example, burglary in many states, drug trafficking in Florida and even sexual abuse of a minor in New Jersey — are not able to avoid the consequences that should come with breaking our nation’s laws.”
While the ruling on Tuesday could anger Trump, the argument that Gorsuch developed does advance his claim as an heir to the legal legacy of the conservative jurist he replaced: Justice Antonin Scalia.
Scalia wrote a similar opinion for the court in 2015, striking down a parallel provision that imposed minimum mandatory prison sentences of 15 years or greater on criminals who‘d committed three “violent felonies.“
The immigration case that was decided on Tuesday, Sessions v. Dimaya, was first argued at the Supreme Court in January 2017, three days before Trump‘s inauguration. The court — shorthanded because of Scalia’s death and Senate Republicans’ refusal to consider President Barack Obama‘s nominee, Merrick Garland — apparently deadlocked.
The case was re-argued before the justices last October, once the court was back to full strength.
The Obama administration took the issue to the Supreme Court after a 9th U.S. Circuit Court of Appeals panel ruled that the clause was too vague to be used to deport James Dimaya, an immigrant from the Philippines who was convicted of two burglaries deemed to be aggravated felonies under the law even though there was no evidence of violence.
The Trump administration picked up the case last year, advancing the same argument that because immigration proceedings are not criminal, constitutional due process doesn‘t require that the language be as specific.
Gorsuch didn‘t buy that.
“If the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today‘s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments,“ the court‘s newest justice wrote.
A Justice Department spokesman did not immediately respond to a request for comment on the ruling and whether the administration intended to ask Congress to rewrite the legal provision the high court struck down Tuesday.
One analyst said Gorsuch‘s action in the case should not come as a surprise, even if the Trump administration was hoping for a different result.
“He signaled pretty clearly he was leaning this way at argument, and it’s deeply consistent with Justice Scalia’s majority opinion in Johnson,“ said University of Texas law professor Stephen Vladeck, referring to the career criminal case. The White House may well be upset, he said, “but this is Gorsuch’s formalist textualism — and the real problem lies with the statute.“
A legal conservative close to the White House said Gorsuch‘s take on the case was consistent with his long-abiding concern about unchecked power in the hands of government bureaucrats, whether they‘re regulating businesses or the status of immigrants.
“He’s sort of following the Scalia tack on this,“ said the conservative attorney, who spoke on the condition of anonymity. “You’ve got a penalty being carried out by an administrative process and he would impose a higher burden [where] life, liberty or property are at issue.“
One open question is whether Gorsuch‘s willingness to apply a more rigorous standard in the deportation case decided on Tuesday could carry over to other immigration-related cases, including the one on Trump‘s travel ban set to be argued before the court next week.
That seems unlikely based on Gorsuc‘’s stance last June when the Supreme Court allowed an earlier version of Trump‘s travel-ban policy to take partial effect. Gorsuch joined with the high court‘s most conservative members, Justices Clarence Thomas and Samuel Alito, in an opinion that said the travel ban should have been put into full force, despite lower court rulings putting it on hold.
“It’s probably too hasty to conclude that Gorsuch‘s decision here somehow foretells his decision in other immigration cases. It‘s a very statute-bound analysis,“ the conservative adviser said.
Justice Elena Kagan wrote for the court‘s liberals Tuesday, arriving at the same conclusion as Gorsuch via somewhat different reasoning.
The court‘s other four Republican-appointed justices dissented.
The new ruling does not strip the federal government entirely of its ability to deport immigrants convicted of crimes.
A list of specific crimes and categories of crimes that can lead to deportation remains on the books, as does the provision covering crimes involving actual or attempted violence or threats. But the so-called residual clause intended as a catch-all is dead — at least unless or until Congress revises it.