Immigration Cases Make Strange Bedfellows. But Is It a Long-Term Relationship?

The big news at the Supreme Court last week was that Justice Neil Gorsuch seemed to make some new friends. In an immigration case with important long term implications, Justice Gorsuch voted with the four liberal justices (Breyer, Ginsburg, Kagan, and Sotomayor) to invalidate a crime-based deportation provision because it was void for vagueness, and thus unconstitutional.

The optics of this new alliance on the High Court generated a great deal of confused excitement in the media. Almost immediately two major distortions took hold. First, that Gorsuch’s decision in this case was surprising. Second, that this decision was a rebuke to President Trump by the justice who he had placed on the Court.

There should have been no surprise. Gorsuch’s reasoning in this case was entirely predictable given the opinions he had issued less than two years earlier when he was a circuit court judge. Nor should anyone have been shocked that he could be persuaded to rule in favor of an immigrant fighting deportation. He did exactly that in his most notable decision as a lower court judge, the one which probably earned him his nomination to the Supreme Court.

This decision also should not be thought of as a blow specifically to the Trump agenda, given that it began under the Obama Administration. The case will be remembered as Sessions v. Dimaya, but that is only because current Attorney General Jeff Sessions subbed in for his predecessor. Back in 2016, when the case was known as Lynch v. Dimaya, it was the Obama Justice Department that asked the Supreme Court to put the case on its docket.

Nevertheless, the Trump Administration was not pleased by the result, and issued alarmist warnings in response. The Department of Homeland Security issued a statement declaring: “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.” It is true that the ruling will prevent the deportation of some legal residents who have felony convictions. But it is not clear exactly how many cases will be directly affected, for two reasons. First, immigrants who enter the country illegally or who overstay visas can usually be deported even if they do not have a criminal conviction. Second, this decision only struck down one of many criminal grounds that can lead to the deportation of a legal resident. DHS can still seek the removal of legal immigrants who have convictions for crimes involving moral turpitude, felony crimes of theft, burglary, sexual abuse of children, domestic violence, rape, and any felony that involves violence or threats of “physical force against the person or prop­erty of another.” That’s just a partial list of deportable crimes left untouched by the Dimaya decision.

How the Government Lost Dimaya

Dimaya is a milestone simply because the Court struck down a provision of immigration law. That has not happened often in American history. At a minimum, this is yet another indicator that the Supreme Court sees real constitutional limits on federal power over immigrants inside the United States, especially in terms of due process of law. But that’s just the start of it. Dimaya has the potential to be a foundation for even bigger milestones in the future — especially if Gorsuch and his new friends can find a way to forge a sustainable liberal-conservative alliance. To understand why that is possible, we have to get into the weeds of what this case was actually about.

Sessions v. Dimaya concerned a catch-all definition of a crime of violence that would make deportable an immigrant who was convicted of a felony “that, by its nature, involves a substantial risk that physical force … may be used.” That is different from crimes like assault with a deadly weapon, where violence is intrinsic to the crime itself. The problem with the catch-all definition is almost any criminal activity could conceivably lead to violence. For example, if a person tries to steal someone else’s handbag, it might conceivably lead to a physical struggle, but that’s not part of the definition of the crime of theft. In a previous decision by Justice Scalia, the Supreme Court had invalidated — in a criminal case — a very similar catch-all definition of a crime of violence as void for vagueness.

The critical question the Supreme Court faced in Dimaya was whether the same constitutional vagueness standard applied in the immigration context. This is the question that forged a tenuous alliance between Gorsuch and his four liberal colleagues.

The government’s primary argument was that the vagueness standard should be more relaxed in an immigration context than it would be in a criminal case because deportation is a civil matter. In Dimaya, the majority of the Supreme Court found the civil-criminal distinction unpersuasive. That may be a big deal. For more than a century, the civil-criminal distinction has been the primary justification for limiting immigrants’ due process rights. This is the argument usually given to explain why immigrants facing deportation do not get appointed counsel to defend themselves in Immigration Court, for example. And yet, Justice Gorsuch referred derisively to “the happenstance that a law is found in the civil or criminal part of the statute.” To be clear, this case was only about the void for vagueness question. But look for that line to be quoted many times in briefs arguing for more expansive due process protections for immigrants challenging the Department of Homeland Security.

The Elephant in the Room

The potential implications of Dimaya go well beyond immigration. This is illustrated by the way in which Gorsuch and the other four justices in the majority did not agree completely. Justice Kagan (no relation to this author) wrote that the civil-criminal distinction did not help the government because the “grave nature of deportation” required the more stringent standards normally used in criminal cases. But Justice Gorsuch did not sign that part of the opinion. Writing only for himself, Gorsuch agreed about the severity of deportation. But he objected to the implication that deportation is unique: “grave as [deportation] may be, I cannot see why we would single it out for special treatment when so many civil laws today impose so many similarly severe sanctions.”

Why could these justices not come together, when they seemed at least to agree about the case in front of them? There is an elephant in the room here, and its name is Chevron deference. Before he reached the Supreme Court, Justice Gorsuch was best known for critiquing this rule, which requires judges to defer to executive branch agencies about how laws enacted by Congress should be interpreted. Chevron deference does not normally apply to criminal statutes, which is why Justice Gorsuch’s broad attack on the civil-criminal distinction is, as George Will wrote, “a scythe sharp enough to slice through many practices of the administrative state.” But this may also be why Justice Gorsuch could not convince any of his colleagues to sign onto his opinion. While Chevron increasingly has critics on the Court, it is not clear how many of the justices are yet ready to blow up the central doctrine of modern administrative law, especially in a case that does not require doing so.

I have written before in this space that immigration cases offer an opportunity to build a bridge between conservative critics of Chevron and liberal jurists who normally might be predisposed to defend it. Dimaya shows this potential, but also the challenges to building a durable left-right alliance on this issue.  By seeming to want an exception just for deportation cases, Justice Kagan could be accused of promoting a form of immigration exceptionalism. But Justice Gorsuch could be accused of being too greedy. He seemed to be demanding that his colleagues agree to a sweeping ruling applicable in nearly all civil contexts, when the case before them in fact only concerned only one such context.

It would have been helpful if Justice Kagan had been willing to say more clearly that deportation is one example where the civil-criminal distinction is unpersuasive, but it might not be the only example. That might have left more room for Gorsuch to sign on. And it would have been helpful if Gorsuch had been more willing to proceed case by case, as judicial restraint dictates. That would have been a principled and modest approach for both sides, but they couldn’t quite get there.

But this is just the beginning. Tests of this relationship will come very quickly. On Monday, the Supreme Court heard arguments in another immigration case where Chevron deference is the central issue, Pereira v. Sessions. I have written elsewhere that the Court tends to apply Chevron in certain kinds of immigration cases, but not in others, but typically without announcing a clear rule about why it is doing so. This case gives Justice Gorsuch another opportunity to press his colleague to directly reconsider Chevron. An even more dramatic test may come through the many cases in lower courts challenging the way immigration arrests are carried out today. A straight-forward application of the Fourth Amendment as it applies in criminal contexts would say that many, if not most, immigration arrests are unconstitutional because they are not backed by judicial findings of probable cause. The Department of Justice relies on the formally civil nature of immigration enforcement to defend the validity of immigration arrest procedures. When this question reaches the Supreme Court, immigrants will hope that the Gorsuch-liberal coalition in Dimaya rejects the civil-criminal distinction once again.

Basically, Justice Gorsuch and the four liberal justices have gone on a first date. It might not amount to anything. It could be the beginning of a longer term relationship, but it might have been just a one night stand.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 26, 2018 at 07:17:20 am

I hope it was a one-night stand.

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Image of Mark Pulliam
Mark Pulliam
on April 26, 2018 at 11:04:12 am
Image of SgtDad
on April 26, 2018 at 11:38:38 am

Because he likes big unConstitutional government.

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Image of John Ashman
John Ashman
on April 26, 2018 at 12:26:10 pm

Over at American Greatness, Mark Pulliam and Ken Masugi's offer their much less optimistic appreciations of Gorsuch's concurrence in Sessions v. Dymaya. In particular, Masugi observes that Gorsuch rejected Thomas' analysis partly on his his historical understanding of the Alien and Sedition Acts. This suggests that Gorsuch may be attracted to the Democratic-Republican tactics outlined in the Virginia and Kentucky Resolutions.


While I'm fond of the Resolutions and Jeffersonian federalism, there has been a lot of water under the bridge and over the dam since 1798; state and local governments have been throughly subjugated to the federal government, people's attachment to the federal government has been very much attenuated over the last 70 years, and Congress itself is much less representative than it was as recently as 1913.

It's one thing to pick at Chevron using a few obscure claims involving BLM and EPA that arose out of an agency's novel interpretation of foggy language in the statutes the agency has been created to administer and quite another thing to try out a new toy on an explosive political issue where the plaintiff is not even a citizen and where Congress is acting in an area that is expressly delegated to it in Art. I, §8 and where the law has been settled and consistently applied for over 100 years.

On the bright side, a strong dose of Gorsuchism in one or two more highly charged political cases like Dimaya may be enough to get Congress to do something about the Supreme Court in particular and the federal judiciary, general.

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Image of EK
on April 26, 2018 at 16:53:09 pm

"This suggests that Gorsuch may be attracted to the Democratic-Republican tactics outlined in the Virginia and Kentucky Resolutions."

That would be bloody fantastic.

And now, what? You want to go to Court Packing? Congress needs to STFO of the judiciary.

And if you are talking "expressly delegated" immigration law, you had better be able to quote it. Because it is not there and the Founders never wanted it there.

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John Ashman
on April 26, 2018 at 17:17:18 pm

Gorsuch is putting the fear of the Constitution back into Republicans. Not fear FOR it, but fear OF it. They are starting to worry if their wholly invented "plenary" powers will survive the next generation of originalism. They have no such worry going up against Roe v Wade. But immigration power? Good luck defending THAT in front of a real originalist. Despite Lincoln´s assertions, we remain a LEGAL FEDERATION, not a legal "nation".

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John Ashman
on April 26, 2018 at 18:31:25 pm

The naturalization clause in Art. I § 8;
the commerce clause in Art. I, § 8; and
the migration or importation clause of Art. I, §9.

Together, they seem to give Congress supremacy in the area of immigration and migrants.

The Head Money Cases of 1884 were upheld under the commerce clause and the language of the act in question tracked the migration and importation clause of Art. I, § 9. Since 1882, it has been generally understood that Congress has asserted its supremacy in matters related to immigration.

Perhaps you know of contrary authority.

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Image of EK
on April 26, 2018 at 19:04:35 pm

1. Naturalization or delayed citizenship was given to the Feds in order to protect all the states from infighting over their naturalization policies AND because it was seen as a balance to open borders. That for all the people who came, th ey would have to acclimate before voting.

2. Immigration isn´t actual commerce.

3. The "importation or migration" clause is solely to do with slavery and nothing else. You mean read the August 22 transcript of the Convention notes and the only mention of immigration was to proclaim the negative impact slavery had on it by destroying job for immigrants.

"Seems" isn´t evidence. The Founders rebelled against King George citing immigration meddling. They repeatedly stated that delayed citizenship was enough to deal with open borders. That immigration was a net plus. And NO STATE would have signed away their sovereignty in this area. The idea of armed federal thugs invading their state to evict any non citizen they wished would have been wholly repugnant to them and nowhere more than the slave holding states.

Citing cases from 100 years afte rthe Constitution has no effect on me, especally given Dred Scott. Please confine your arguments to the 25 years before and after the Constitution, based on the words of the Constitution, the Founders and how they used the law, rather than the Constitutional equivalent of hearsay.

Thank you.

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John Ashman
on April 27, 2018 at 00:51:26 am

Gorsuch was blowing up the distinction between criminal and civil in the Due Process realm, where the Constitution does not make such a distinction. He did not claim that there is not ever a difference between civil and criminal cases, nor did he claim that immigration cases are criminal cases. I see no reason to believe that his reasoning would give aliens a right to a government attorney since that right comes from the Seventh Amendment, which is explicitly referring only to "criminal prosecutions." As far as unreasonable searches and seizures, the Fourth Amendment is not explicitly limited to criminal cases, but there is a long history that seems to assume that it doesn't apply to civil cases, i.e., the discovery rules that don't require probable cause. On the other hand, I don't know what the correct original meaning was of the Fourth Amendment.

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Image of brad
on April 27, 2018 at 08:56:17 am

The coincidence of Gorsuch's vote with those from the so-called liberal justices hardly indicates they might form an alliance. This would be like conjecturing that a handful of people coinciding at the elevator might be on the path to form a partnership. If anything, the statutory clarity demanded by Gorsuch would render biased rulings (whether those rulings are biased by ideology or by corruption) more evident, more difficult to make, and harder to defend.

Gorsuch's opinion is about poorly enacted legislation rather than the controversial topic of immigration. I applaud his rejection of the civil-criminal distinction because statutory language should be clear also in non-criminal matters. Why shall laws be concise only for cases involving possible incarceration and where their caption begins with "The state of" or "The People"? Maybe other opinions in Dimaya address this question, but at the end that distinction makes the access to courts futile and wasteful for having to litigate provisions which are unacceptably blurry.

The exceptionalism allegedly promoted by Justice Kagan (whose opinion I haven't read) implicitly fosters statutory ambiguity. And Gorsuch rightly points out that the defective language of a statute enables "will, not judgment" determine the outcome of a case. Morever, this slow, piecemeal approach implied from exceptionalism does not even guarantee that other injured litigants will have their case reviewed by the top court.

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Iñaki Viggers
on April 28, 2018 at 14:14:50 pm

I see you know no contrary authority, either historical or legal.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.