'Bad Hombres' Loom Over Supreme Court

Deportation case could be influenced by Trump's politics.

Anti-illegal immigration.

Photographer: Andrew Renneisen/Getty Images

Is it lawful to deport immigrants who commit “aggravated felonies”? Or is that language unconstitutionally vague? The U.S. Supreme Court considered the question Tuesday, in a case that’s proof of De Tocqueville’s dictum, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one." Although the legal issues are subtle, the atmospherics of the case are all about Donald Trump’s warnings of “bad hombres” illegally entering the U.S.

The case involves James Garcia Dimaya, a Filipino citizen who’s been a lawful permanent resident of the U.S. since 1992. On two occasions, in 2007 and 2009, Dimaya was convicted of burglary under California law, and sentenced each time to two years in prison. On the basis of his convictions, the Department of Homeland Security sought his deportation.

A federal statute says that if a noncitizen is convicted of an “aggravated felony,” he is subject to removal from the country. A further statute defines aggravated felony to include a “crime of violence ... for which the term of imprisonment is at least one year.”

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That requires an immigration judge asked to approve a deportation for an aggravated felony to look to the definition of a crime of violence. Yet a third statute says a “crime of violence” includes the use or attempted use of physical force against a person or property, or else involving “a substantial risk that physical force … may be used in the course of committing the offense.”

An immigration judge and the Board of Immigration Appeals both ruled that burglary involved a substantial risk of force, and that Dimaya had therefore committed an aggravated felony and could be sent back to the Philippines.

But while his case was being appealed to the U.S. Court of Appeals for the 9th Circuit, Dimaya had a stroke of luck. In June 2015, in one of Justice Antonin Scalia’s last important decisions, the Supreme Court decided Johnson v. U.S., a case that turned on the meaning of the phrase “violent felony” under the Armed Career Criminal Act. That law defined a violent felony as involving “conduct that presents a serious potential risk of physical injury to another” -- language strikingly similar to the “substantial risk of physical force” language in the statute that applied in Dimaya’s case.

Scalia’s opinion held that the Armed Career Criminal Act’s definition of violent felony was unconstitutionally vague because it relied on a judicially imagined “ordinary case” while also leaving it up to the judge to guess how much risk counts as “serious potential risk.”

In an opinion by Judge Stephen Reinhardt, a liberal hero who is the last serving Jimmy Carter nominee not to have taken senior status as the judge, the 9th Circuit eagerly took Scalia’s lead and applied the logic of the Johnson precedent -- a criminal law case -- to the immigration statutes.

First, Reinhardt said that not only criminal laws but also civil laws governing the removal of immigrants could be held void for vagueness. The basis for this conclusion is a 1951 decision by the Supreme Court stating that the “grave nature of deportation” justifies analyzing whether the law is vague.

Then, Reinhardt held that the immigration laws had exactly the same vagueness problems as the felon-in-possession laws that Scalia struck down in 2015.

Barack Obama’s Department of Justice is arguing forcefully before the Supreme Court to reverse Reinhardt’s decision -- a reminder that those critics who derided Obama as the “deporter in chief” weren’t just being rhetorically aggressive. What’s most surprising about the brief filed by the office of the solicitor general is that it essentially denies that immigration laws can be overruled as unconstitutionally vague, despite the 1951 precedent.

The government says that the due process clause of the Constitution only prohibits vague statutes “to ensure fair notice of what conduct is criminally prohibited” and to avoid arbitrary enforcement of the law. It claims that there’s no constitutional right to notice about deportation law, and that there’s no worry about arbitrary enforcement because the attorney general prescribed standards to apply immigration law.

Most liberals would condemn these arguments as outrageous if they were being made by Trump’s Justice Department. There’s a right to due process in deportation From that, it should follow logically that there’s a right to know in advance what conduct will get you deported.

The problem with unconstitutionally vague statutes is that they violate the basic principle of the rule of law. Without legal clarity, there can be no legal predictability. That principle applies whenever a person is in serious jeopardy as to his or her rights -- which should include jeopardy of being kicked out of the U.S.

The government’s proposed distinctions between the text of the criminal law and the immigration laws aren’t all that much better. Of course, the language isn’t identical, but the basic notion is. Scalia’s opinion highlighted that giving too much imaginative discretion to the judge charged with applying the law makes us into a government of men and not of laws. That’s the same with the immigration statutes in Dimaya’s case.

What’s changed since 2015, of course, is Trump’s election. From a political standpoint, this coming spring might not be the moment when the Supreme Court wants to issue a decision holding that the government can’t deport immigrants convicted of aggravated felonies.

With Scalia no longer on the bench, there’s not much chance that the words “bad hombres” would actually come up in oral argument. But you can be sure they’re in the back of the justices’ minds.

The tension between the rule of law and the influence of a new administration with hostile attitudes toward immigrants begins now.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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