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Vague Laws Invite Arbitrary Power

“Vague laws invite arbitrary power.” states Justice Gorsuch in his concurring opinion in Sessions v. Dimaya, finding the residual aggravated felony definition of “crime of violence” in the Immigration and Nationality Act, 101(a)(43)(F), referencing 18 U.S.C. §16,  is void for vagueness.  The decision only addresses 18 U.S.C. 16(b) portion of the definition, and holds that it is void for vagueness.

The aggravated felony definition includes a list of enumerated crimes, and includes “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment is at least 1 year.” INA Sec. 101(a)(43)(F).  Mr. Dimaya, a legal permanent resident,  had two  prior  convictions  for  first-degree  residential  burglary under California law, subjecting him to removal.  The government claimed that in committing the residential burglary offenses, he had committed an aggravated felony crime of violence.

Justice Gorsuch began with a foundational question based on Johnson v. United States, 576 U.S.__ (2015), which held that the residual clause of the Armed Career Criminal Act void for vagueness.  Citing to the late Justice Scalia’s opinion in Johnson, that the residual was  for vagueness because it “invited more unpredictability and arbitrariness” than the Constitution allows. Id., at –––– (slip op., at 6), Justice Gorsuch stated that he was “persuaded” that the “void for vagueness doctrine” serves as a “faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371 (U.S. Apr. 17, 2018).

While “some have suggested that the Due Process Clause does less work than this, allowing the government to deprive people of their liberty through whatever procedures (or lack of them) the government’s current laws may tolerate,” Justice Gorsuch stated in his view the “weight of the historical evidence shows that the clause sought to ensure that the people’s rights are never any less secure against governmental invasion than they were at common law.” The basis of due process’s “customary protections is the demand of fair notice” which Justice Gorsuch believes is required for both criminal and civil cases, that often affect a person’s life, liberty, or property.

Justice Gorsuch referenced Blackstone to illustrate how courts have held statutes failing to provide notice.  “Blackstone illustrated the point with a case involving a statute that made “stealing sheep, or other cattle” a felony. 1 Blackstone 88 (emphasis deleted). Because the term “cattle” embraced a good deal more then than it does now (including wild animals, no less), the court held the statute failed to provide adequate notice about what it did and did not cover—and so the court treated the term “cattle” as a nullity. Sessions, 2018 WL 1800371 All of which, Blackstone added, had the salutary effect of inducing the legislature to reenter the field and make itself clear by passing a new law extending the statute to “bulls, cows, oxen,” and more “by name.” Ibid.

Instead of trying to construe vague laws, judges held the “laws too vague to apply.”  Vague laws implicate the Due Process Clause, but also on the separation of powers if courts are to interpret vague laws.  “ That power does not license judges to craft new laws to govern future conduct, but only to “discer[n] the course prescribed by law” as it currently exists and to “follow it” in resolving disputes between the people over past events. Osborn v. Bank of United States, 9 Wheat. 738, 866, 6 L.Ed. 204 (1824).” Sessions, 2018 WL 1800371, at *16–26

Justice Gorsuch cautioned that the “vagueness doctrine” is a procedural demand, which 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.”  Sessions, 2018 WL 1800371, at *16–26.  The decision was narrow and only addresses the “ statute’s ‘residual clause’ where Congress ended its own list and asked us to begin writing our own. Just as Blackstone’s legislature passed a revised statute clarifying that “cattle” covers bulls and oxen, Congress remains free at any time to add more crimes to its list.” Sessions, 2018 WL 1800371, at *16–26

And while the statute before us doesn’t rise to the level of threatening death for “pretended offences” of treason, no one should be surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it. A government of laws and not of men can never tolerate that arbitrary power.”   Sessions, 2018 WL 1800371, at *16–26.

If you are facing criminal-related immigration issues, the Supreme Court’s decision may have important impact on your case.  Contact an immigration attorney for assistance.  We are located in Chicago.