Let’s Talk About Justice Gorsuch’s Concurring Opinion in Sessions v. Dimaya

The following post was originally written and published on a now-defunct website on April 18, 2018.

On Tuesday, the Supreme Court announced its decision in Sessions v. Dimaya.  And upon its release on Tuesday morning, many lawyers on Twitter lost their minds over Justice Gorsuch’s concurring opinion.  And honestly… it’s for good reason.  (Gorsuch’s concurrance starts on page 31 of the PDF linked above)

At issue, generally, in Sessions v. Dimaya is whether a particular criminal statute is “unconstitutionally vague.”  The Court decided by a 5-4 decision that the answer is yes, the statute is unconstitutionally vague.

(If you don’t care about the specific underlying facts of the Dimaya case or how immigration laws were involved, and you’re more interested in what J. Gorsuch had to say, skip the next three paragraphs.)

Facts of Dimaya

Dimaya was convicted of a couple state crimes in California.  Now this wouldn’t be a big deal except that he’s a lawful permanent resident (LPR).  In the U.S., a person’s LPR status is governed by the Immigration and Nationality Act (INA).  The INA lists a number of things that make an alien (the term actually used in our immigration laws) either “inadmissible” (if the alien is not already in the country), or “removable” (if the alien is already in the country, like Dimaya).  To be clear, there are separate sections defining “inadmissible aliens” and “removable aliens,” but under “removable aliens,” someone who would have been deemed “inadmissible” when they arrived is thus, removable.

The list of classes of inadmissible aliens is long, and actually pretty interesting.  There’s some stuff on there that I bet you didn’t think would keep people out of this country.  Like having recently engaged in prostitution.  Super-no-go.  So is having recently attempted suicide or just generally being in poor mental health.   A lot of the list makes sense.  Some of it you can certainly argue is unnecessary.  Regardless… the list is there.  Check it out.

Anyway… Under the INA, if you’re an alien who has been convicted of an “aggravated felony,” you can be ordered removed.  The INA itself does not define “aggravated felony,” but, instead, basically says that for purposes of determining whether a conviction is an “aggravated felony under the INA, we’ll use the definition of “aggravated felony” that’s located in an entirely different law (this one).  The problem is, this law contains language  (16[b]) that is like… almost identical, to a different clause that the Supreme Court struck down as “unconstitutionally vague” a couple years ago.  So, Dimaya was ordered removed under this particular clause, but fought it all the way to the Supreme Court arguing he can’t be ordered removed because of this clause because this clause is also “unconstitutionally vague.”

What J. Gorsuch Had to Say

Now… The central holding here in Dimaya most likely isn’t super relevant to you (since it involves a not-super-common federal criminal statute) but it contains writing by Justice Gorsuch that is not only just good writing, but provides us with some insight into how he may be a greater friend to individual liberties, and to the left, than many may have thought.  And more importantly to me, it shows that he’s not afraid to disagree with Justice Thomas, who may be viewed as the far right Justice on the Court.

In this case, Justice Thomas wrote a dissenting opinion in which he argues that there is no such thing as “unconstitutionally vague” because the Constitution doesn’t provide the Court with the power/authority to strike down statutes based on vagueness.  Those who view Gorsuch as a Thomas/originalist/textualist pawn were surprised that Gorsuch could not “subscribe” to such a view.

Instead, Gorsuch breaks from Thomas and presents some fantastically written, well thought out, principled arguments in favor of scrutinizing legislation for vagueness. He cites two basic principles…

(1) Procedural Due Process – The Constitution, and the Court’s interpretation of it, provides us with procedural due process. Part of due process is essentially making sure that someone can be said to have “notice” that what they are doing is wrong. The idea being, how can you hold me liable for something if there was no way could have or should have known what I did was wrong. Makes sense, right? So by that reasoning, if notice is required for due process, then a criminal statute must make it clear what conduct it prohibits. If the statute is not clear (that is, if the statute is vague) then the statute cannot be said to provide adequate notice of what conduct it prohibits, and thus, a person charged with a violation of that statute cannot be said to have been afforded due process.

(2) Separation of Powers – The second argument he makes is that vague statutes violate the principle of separation of powers. The reasoning is basic civics. Congress (legislative branch) passes laws. Prosecutors (executive branch) carries out/enforces laws. Courts (judicial) interpret laws to settle controversies. So unfortunately, sometimes, as here in the criminal context, Congress passes a law that makes certain conduct illegal, but the statute is written in such a way that it’s unclear exactly what conduct does or does not fall within that law. SO, when Congress enacts such a vague statute, it necessarily leaves it to courts and to prosecutors to determine for themselves what the statute actually means. The executive and judicial branches must decide for themselves what conduct is and what conduct is not criminal. But by doing so, the judicial and executive are essentially creating laws, themselves, by saying what is and what is not criminal conduct. Thus, to prevent the judicial branch and executive branch from violating the constitution determining themselves what is and what is not a crime, Congress must refrain from enacting vague laws.


J. Gorsuch, despite being vilified by the left, gives a sneak preview of areas in which he may be very favorable to a few liberal causes.

For instance, he writes that it would be ridiculous to hold criminal statutes to a higher standard than civil statutes merely because only violations of criminal law mean jail time.

As the liberal majority in this case points out, traditionally/generally, when the Supreme Court is determining whether a statute or government action violates a person’s due process rights, the Court has typically shown civil laws greater deference than it has shown to criminal laws. The idea being that punishments for crimes (like jail time) are more serious than punishments for violations of civil laws (like fines).

This case involves civil law. (Our immigration laws are civil laws, not criminal). Here, the liberal majority writes that in this case, even though we’re dealing with civil immigration laws, and even though civil laws are generally afforded greater deference, because deportation is a particularly serious punishment, akin to jail time, the statute at issue deserves higher scrutiny, like what criminal laws get.  And reviewing this law under that heightened level of scrutiny, the majority held, the statute at issue is unconstitutionally vague.

Gorsuch says that distinction between criminal and civil laws based on the severity of the punishment is BS.  The level of scrutiny/deference statutes/laws get shouldn’t depend on jail time or not.  He argues that many violations of civil law bring equally, if not greater punishments, like revoking a business license or confiscating one’s home.  Both civil and criminal laws, he seems to suggest, should be equally scrutinized.

I read this as Justice Gorsuch openly calling for challenges to civil forfeiture laws.

He is upholding due process rights not just of persons and their liberty from detention, but economic liberty and property rights, as well!

He also plainly rejects any notion that the due process rights the Constitution provides are ONLY to US Citizens.  (Courts have questioned whether the due process rights in the Constitution apply only to US Citizens or to anyone on US soil.)

I promise you, although his concurring opinion does not, itself, have the force of law, this is a hugely momentous piece of writing in the Supreme Court and suggests we might see some huge changes moving forward.

Or… ya know… we might not.

As always:  Contact me and let me know what I got wrong, and let me know if you have any questions, comments, or concerns.