The Atlanta Journal-Constitution
Part of law used in deportations ruled too vague
Divided High Court sees Gorsuch join in nullifying statute.
WASHINGTON — A divided Supreme Court ruled Tuesday that part of a federal law used to deport noncitizens who commit felonies is unconsti- tutionally vague, with new Justice Neil Gorsuch joining the court’s liberal members in striking the statute.
The 5-to-4 decision could limit the government’s abil- ity to deport those with crim- inal records, something that President Donald Trump has identified as a priority.
Justice Elena Kagan wrote that the part of the Immigration and Nationality Act was so “fuzzy” over what consti- tutes the kind of aggravated felony that requires an immigrant’s deportation that it vio- lated the constitutional protection of due process.
She was joined by the court’s consistent liberals - Justices Ruth Bader Gins- burg, Stephen G. Breyer and Sonia Sotomayor - as well as Gorsuch, who has just cele- brated his first anniversary on the court after being nominated by Trump.
Gorsuch did not join all of Kagan’s opinion, but he agreed with the outcome.
“Vague laws invite arbitrary power,” Gorsuch wrote in concurring with the major- ity. He mentioned that before the American Revolution, the crime of treason in English law gave authorities power to go after those whose opin- ions they disliked.
“Today’s vague laws may not be as invidious, but they can invite the exercise of arbi- trary power all the same - by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up,” he wrote.
For the conservative Gorsuch to align with the liberals might seem a surprise, but his vote was in keeping with questions he asked during oral argument in October. And he was in part following in the footsteps of the justice he replaced, the late Antonin Scalia.
In 2015, Scalia wrote the court’s decision in John- son v. United States, which struck down a similarly vague description of violent felony in the Armed Career Criminal Act.
The same standards held, Kagan wrote: “Johnson is a straightforward decision, with equally straightforward application here.”
The present case was brought by James Garcia Dimaya, a citizen of the Philippines admitted to the United States as a lawful permanent resident in 1992, when he was 13.
In 2007 and 2009, he was convicted of residential bur- glary. The Department of Homeland Security deter- mined that his crimes could be considered crimes of vio- lence and thus were aggravated felonies that made him eligible for deportation.
But after the Johnson decision, lawyers for those slated for deportation challenged a catchall provision of the immigration law. It defined as a crime of vio- lence offenses that involve “a substantial risk that phys- ical force against the per- son or property of another may be used in the course of committing the offense.”