Tale of Two Gorsuches at ‘Crimmigration’ Arguments

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By Jordan S. Rubin

Justice Neil M. Gorsuch revealed two sides of himself during oral arguments in contentious “crimmigration” cases—at the intersection of immigration and criminal law—during the first two days of the U.S. Supreme Court’s 2017 term ( Sessions v. Dimaya , U.S., No. 15-1498, argued 10/2/17 , Jennings v. Rodriguez , U.S., No. 15-1204, argued 10/3/17 ).

Gorsuch took a circumspect view of the government’s case on the first day in Dimaya, but the few questions he asked the next day, in Jennings, gave little hint at his leanings in the case. Both cases address significant questions of executive authority and the rights of immigrants facing removal from the country.

Dimaya and Jennings were both argued last term in front of an eight-justice court, before Gorsuch was appointed by President Donald Trump and confirmed in April. In June, they were set down for re-argument this term. Court watchers say Gorsuch could break the apparent 4-4 deadlocks in the cases.

Out-of-the-Gate Grilling

On the first day of arguments (Oct. 2, argument transcript) in Dimaya, Gorsuch grilled the government about the consequences faced by immigrants subjected to vague laws and the lack of a clear standard to guide his decision in the case.

The issue in Dimaya is whether the definition of a “crime of violence” incorporated into the Immigration and Nationality Act is too vague and thus violates the Constitution.

The Supreme Court previously struck down similar crime of violence language in a criminal statute for being too vague in Johnson v. United States, a 2015 opinion authored by Scalia. Johnson prompted a mountain of litigation regarding the vagueness of similar statutory language in other contexts, leading most recently to the dispute before the high court in Dimaya.

James Dimaya, a lawful permanent resident, appealed an immigration court’s ruling that his two burglary convictions were “aggravated felonies” that could get him deported because they fell under the “crime of violence” definition incorporated into the immigration act.

Gorsuch’s repeated questioning at oral argument was critical of, among other things, the lack of fair notice given to immigrants who can be deported based on vague laws.

He wondered why the case couldn’t be settled by the plain text of the Constitution. On multiple occasions, he lamented that his questions weren’t being answered.

But if the eight justices from last term indeed were and still are deadlocked after the Oct. 2 argument, then Gorsuch’s tie-breaking vote might not support the government’s position if his questioning at the argument is any indication.

Life, Liberty, and Gorsuch

At issue in Dimaya is whether civil immigration laws can be analyzed under the same strict standard as criminal laws. The government says they can’t. Dimaya says they can.

Gorsuch focused on the text of the Due Process Clause of the Fifth Amendment, which says that a person can’t “be deprived of life, liberty, or property, without due process of law.”

Being deported is a serious consequence, Gorsuch observed, as he prodded Deputy U.S. Solicitor General Edwin S. Kneedler for an answer as to why such a law should be allowed to stand here and what the proper standard is for deciding the issue.

Dimaya’s lawyer, E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe LLP, New York, began his argument by pronouncing, “Justice Gorsuch is right,” alluding to Gorsuch’s seeming criticism of the government’s position.

“This is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground,” Rosenkranz said as he began his argument in response to Kneedler’s.

“The framers understood banishment to be equivalent to taking away that which makes life worth living, Madison talked about banishment as the quintessential penalty, he says it is difficult to imagine a doom to which the name cannot be applied,” he said, in an apparent nod to Gorsuch’s constitutional reference.

But as he did when Dimaya was first argued in January, Kneedler said the executive branch is afforded broad power when it comes to matters of immigration and national security.

Still, however broad that power may be, it wasn’t clear from the Oct. 2 argument, just as it wasn’t clear in January, that a majority of justices agreed it was broad enough for the government to win the day.

“If you’re making the distinction that J ohnson was a criminal case and this is a civil case, this court has had a number of decisions saying that line is not so rigid,” Justice Ruth Bader Ginsburg said to Kneedler.

The line between criminal and civil cases “is blurred when there is such a grave consequence,” Ginsburg said.

Kneedler maintained that the immigration context is still different, that “the standard for assessing vagueness in the immigration context is not the one that’s applicable in criminal cases.”

Detention Deadlock Less Clear

Gorsuch was mostly quiet the next day, Oct. 3, during arguments in Jennings ( argument transcript), a class action brought by non-citizens detained pending removal proceedings.

At issue is whether the detained non-citizens have a right to bond hearings after six months.

Gorsuch asked some short questions during the argument that didn’t seem to attack either side, and he largely took a backseat to his colleagues’ questioning.

The U.S. Court of Appeals for the Ninth Circuit ruled for the immigrants below in Jennings, holding that the relevant immigration statutes don’t permit “prolonged detention” after six months without a bond hearing. The government argued in its petition seeking review that the Ninth Circuit made these safeguards up “out of whole cloth.”

Justice Sonia Sotomayor asked Deputy U.S. Solicitor General Malcolm Stewart what authority the government has to detain immigrants without giving them a right to bond hearings.

It’s an issue of “lawlessness,” she said.

Stewart sought, at times, to rest the government’s claim on the “plenary power” doctrine, which gives the executive branch wide authority in immigration matters.

Certain members of the court seemed unpersuaded.

“It’s a little odd,” Justice Stephen Breyer said, that the government gives bond hearings to “triple-ax-murderers” but not to the immigrants here.

Their lawyer, Ahilan T. Arulanantham of the ACLU of Southern California, claimed it would be “extraordinary” if the high court were to rule that immigrants could be detained longer than six months without a bond hearing.

Justice Samuel Alito asked why six months should be the limit. The number isn’t mentioned in the Constitution, he said.

Arulanantham pointed out that it wouldn’t be the first time the court has drawn a line based on a number of days not referenced in the Constitution.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Dimaya transcript available at http://src.bna.com/s2R. Jennings transcript available at http://src.bna.com/s5w.

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