A very good decision

Opinions will be more than a little mixed on this of course as the Supreme Court announces that immigrants cannot be deported merely for crimes of violence. I, and we here, think this is marvellous news. No, not because we think that the US should be terrorised by hash crazed gangs of illegals roaming and violencing as they wish. Rather, because we classical liberals do keep insisting upon this thing called the rule of law. Something which SCOTUS has just upheld.

The Supreme Court says part of a federal law that makes it easier to deport immigrants who have been convicted of crimes is too vague to be enforced.

The court’s 5-4 decision Monday concerns a provision of immigration law that defines a “crime of violence.” Conviction for a crime of violence subjects an immigrant to deportation and usually speeds up the process. Justice Neil Gorsuch, President Trump’s first appointee to the court, joined with the four liberal justices in making the decision.

We’d expect those four liberals to vote that way. Just because – the law wouldn’t have much to do with it. OK, that’s us being too cynical of course, me being too cynical perhaps. But there are those on that court who vote in a political manner rather than a legal one – this applies to some on either side of the balance of those scales.

That Gorsuch seemingly crossed the political line in order to vote the right way for the right reason is a mark in his favour, maybe even a gold star.

Because what they didn’t say in the ruling is that it’s intemperate, or unfair, or too much punishment, to deport immigrants who have partaken in crimes of violence, that’s not what they said at all:

James Garcia Dimaya, a native of the Philippines, was admitted to the United States in 1992 when he was 13 as a lawful permanent resident. In 2007 and 2009, he pleaded no contest to charges of residential burglary in California. In 2010, the Obama administration brought removal proceedings against Dimaya. An immigration judge determined that Dimaya was removable from the US because of his two state court convictions.
The court held that the convictions qualified for an “aggravated felony” under the Immigration and Nationality Act, which authorizes removal of non-citizens who have been convicted of some violent crimes and defines aggravated felony to include “crimes of violence.”

The problem is that crimes of violence bit:

“Vague laws invite arbitrary power,” Gorsuch wrote in a concurring opinion, adding that the American colonies in the 18th century cited vague English law like the crime of treason as among the reasons for the American revolution.

“Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary 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,” Gorsuch added.

That’s the bit. It’s a standing part of the classically liberal stance that the rule of law is important. That there’s not too much discretion given to the rulers nor their prosecutors. For something to be a crime it has to be written down that it is a crime. The definition of it being clear. And the punishment for committing it equally clear.

Having a higher punishment for a “crime of violence” when we’ve no clear standard of what is a crime of violence – note that Bubba here didn’t use violence at all, it’s just that his crime, of which he was convicted, often involves violence – breaches those basic rules of what is a fair and decent system of law.

That immigrant criminals may or may not be deported isn’t the point here at all. That the law must be clear and defined before it can be used to punish immigrants is. And if it protects immigrants then it will protect us, right?

As has been pointed out slightly differently before now:

Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

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6 COMMENTS

  1. Vague laws are anathema. Yet politicians, a group largely comprised of lawyers, keep writing them.

    Many of our laws lack the bright line, the simple determination of whether an offence has been committed or not. Here in the UK one such law is the hate speech nonsense. People are getting criminal records, maybe doing time, as a result of not being able to see the line. The line which is defined by the person claiming to take offence. It stinks.

  2. I think there’s a lot of people wouldn’t agree with you on this. When you’re talking about law & legal rights, you’re really talking about obligations. For a right cannot exist without an obligation to observe it. And the question is, how much obligation do we have to immigrants? Some would say they’re admitted to the country on the understanding that they behave themselves & obey the law. So what happens if they don’t? Again, some would say they should be treated under the law exactly the same as someone who was born in the country. But why? A person who is born in a country acquires obligations from others by default. They’re one of our own. Part of our society, for better or worse. But why should we have the same obligations to newcomers? A birthright they haven’t earned.
    So in a case like this, tough. This person has shown he’s not a fit person for the society he’s joined by his actions. That a device has to be employed to get rid of him is a failing in the law. The device shouldn’t be necessary. The lawmakers are to blame & should address it.

  3. The text in question: Removal from the US is triggered, among other things, by committing an “offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

    Tim writes that the four lefties would strike down this law “Just because – the law wouldn’t have much to do with it.” Indeed! if the law stands in the way, Justice Breyer will cite law from an African country. Justice Kagan, who wrote the decision, was a bureaucrat who campaigned for the enactment of Obama-care and if she had done the honest thing and recused herself, we would not have that millstone. The Chief Justice would rather defend the institution than read the law.

    https://www.law.cornell.edu/supremecourt/text/15-1498#writing-15-1498_CONCUR_4

    Gorsuch (just after the bit Tim quoted): “Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case….The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more….Does a conviction for witness tampering ordinarily involve a threat to the kneecaps or just the promise of a bribe? Does a conviction for kidnapping ordinarily involve throwing someone into a car trunk or a noncustodial parent picking up a child from daycare? These questions do not suggest obvious answers.”

    Justice Thomas joins a four-judge dissent and also writes separately, and his writings are always worth reading, dissenting for the right reasons: Not that he does not want crooks to be deported, but that the Constitution does not prohibit vague laws, nor does the Fifth Amendment (“no person shall be deprived of life, liberty, or property, without due process of law”) demand it. In any case, the vague wording above was not vague in the case before the Court; it was clear that he would be deported for committing a burglary. He writes that “void for vagueness” has been one more way for the Court to put itself in the position of the legislature.

    • Bottom line, both the Court’s wings gave deference to the Constitution, though mostly informed by whether they view immigration favorably or unfavorably. And both wings would graciously yield, if Congress amended the law to enumerate the crimes (actual statute numbers, or descriptions like “burglary,” but not these broad brushstrokes) whose violations subjected a resident to removal.

  4. The issue seems to be that some courts have allowed crimes without violence to be counted as violent — if they had the potential to escalate to violence. Gorsuch (rightfully) feels that, as a matter of due process, you should enumerate which are, in fact, violent crimes.

    But, for a (possibly relevant) American quote on our legal system:

    SATAN, n. One of the Creator’s lamentable mistakes, repented in sashcloth and axes. Being instated as an archangel, Satan made himself multifariously objectionable and was finally expelled from Heaven. Halfway in his descent he paused, bent his head in thought a moment and at last went back. “There is one favor that I should like to ask,” said he.

    “Name it.”

    “Man, I understand, is about to be created. He will need laws.”

    “What, wretch! you his appointed adversary, charged from the dawn of eternity with hatred of his soul—you ask for the right to make his laws?”

    “Pardon; what I have to ask is that he be permitted to make them himself.”

    It was so ordered.