Supreme Court Hears Challenge To Deportation Power

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By Kevin Daley

The Supreme Court heard arguments Tuesday in a major immigration case concerning the federal government’s power to deport undocumented immigrants convicted of crimes.

The justices were asked to decide whether a federal provision allowing the government to deport immigrants — even naturalized citizens — convicted of a “crime of violence” is unconstitutionally vague. “Vagueness doctrine” refers to a constitutional rule which holds that a law cannot be unclear or ill-defined, as it may lead to capricious or disparate application.

Tuesday’s case, Lynch v. Dimaya, is the latest in a series of vagueness cases the Court has been made to grapple with in the aftermath of its Johnson v. United States decision in 2015. In Johnson, the justices found a provision of the Armed Career Criminal Act, which provided for additional penalties for repeat offenders who commit “violent felonies,” was void for vagueness. The language from Johnson is almost exactly identical to the language at issue in the Dimaya litigation.

The Johnson ruling presented an additional challenge for the government in Tuesday’s case. In Johnson, government lawyers argued striking down the relevant section of the ACCA would make a number of other federal laws unconstitutionally vague — including the law at issue in Dimaya. Justice Ruth Bader Ginsburg wasted no time hoisting the government on its own petard. (RELATED: Supreme Court Divided Over Bond Hearings For Undocumented Immigrants)

“But didn’t the government argue when Johnson was before us, that if the ACCA residual clause was invalid, then 16(b) would be vulnerable because it was subject to the same central objection,” Ginsburg asked deputy solicitor general Edwin Kneedler, the lawyer arguing for the government in the case. “Wasn’t that the government’s argument?”

Kneedler argued the language in Dimaya was different from the language in the ACCA because the definition of violence was more focused, and because immigration proceedings are supervised by a federal agency, greatly reducing the possibility of divergent application of the law. He also argued the immigration context was unique given its high stakes.

“What’s at stake is the fact that the immigration laws are vital to the nation’s national security and foreign relations and the safety and welfare of the country,” Kneedler said.

Justice Stephen Breyer was concerned striking the language could imperil so-called “public goods” civil standards that are also somewhat vague.

“The thing underlying this — which is a difficult case — is if we say you’re right, what then do we say about moral turpitude, unfair competition, just and reasonable rates, public convenience and necessity, and there are a hundred others,” he asked.

Joshua Rosenkranz, arguing against the government, pointed out the Johnson ruling has spawned many other challenges to laws with similar language, many of which the Supreme Court has been asked to resolve. Late last year in Beckles v. U.S., the justices heard a challenge to a section of the United States Sentencing Guidelines whose language was similar to the ACCA.

“At some point this Court is going to have to decide whether it’s had enough,” Rosenkranz said. “And it’s not like we don’t know where this case is headed.”