Court Reins In ‘Crime of Violence’ Deportations

The Supreme Court ruled Tuesday that a provision in a law subjecting immigrants to deportation for crimes of violence is unconstitutionally vague, thanks to the swing vote of President Trump’s high court nominee, Justice Neil Gorsuch. The ruling goes against the president’s effort to deport immigrants who commit crimes in the United States, and it takes issue with the criterion of having committed a “crime of violence” as grounds for deportation.

“What does that mean?” Gorsuch asked of the term “crime of violence.” “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,” he added.

Politico continues:

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.

The majority opinion, written by Justice Elena Kagan, reads:, “The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have ‘fair notice’ of the conduct a statute proscribes. And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries and judges.”

The four dissenters released two separate opinions totaling more than 47 pages. Justice Clarence Thomas warned that the court’s decision could lead to “the invalidation of scores of similarly worded state and federal statutes.”

Chief Justice John Roberts wrote: “Today’s holding invalidates a provision of the Immigration and Nationality Act … on which the government relies to ‘ensure that dangerous criminal aliens are removed from the United States,’ ” Chief Justice John Roberts wrote.

Department of Homeland Security press secretary Tyler Houlton said the ruling “significantly undermines DHS’s efforts to remove aliens convicted of certain violent crimes, including sexual assault, kidnapping, and burglary.”

The ruling follows a similar one made in 2015, in which the court struck down a provision targeting armed violence on the grounds that it was unconstitutionally vague. The clause allowed past convictions to be treated as violent felonies if they involved “conduct that presents a serious potential risk of physical injury to another.” The late Justice Antonin Scalia wrote the majority opinion in that case, asserting, “Decisions under the residual clause have proved to be anything but evenhanded, predictable, or consistent.”

A Justice Department spokesman issued a statement that reads: “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. 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.”

University of Texas law professor Stephen Vladeck told Politico that Gorsuch’s vote should not come as a surprise: “He signaled pretty clearly he was leaning this way at argument, and it’s deeply consistent with Justice Scalia’s majority opinion in Johnson,” he said. “As for the White House, they may well be pissed, but this is Gorsuch’s formalist textualism—and the real problem lies with the statute.”

A conservative attorney who asked to remain anonymous added that Gorsuch is “sort of following the Scalia tack on this,” adding, “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.”