Notice & Comment

Justice Gorsuch, Immigrants, and Administrative Law

This week the Supreme Court voided a federal statute for vagueness.   In his concurring opinion, Justice Gorsuch agreed that the statute is unconstitutionally vague.  To support this conclusion, he emphasized his concerns about separation of powers principles. His use of separation of powers concerns in an immigration law case is a signal that Justice Gorsuch may be willing to include immigration law in his vision for administrative law generally.

In Sessions v. Dimaya, the Court held that 18 U.S.C. § 16(b) is void because it is unconstitutionally vague.  Section 16(b) is a part of the federal criminal code, but it holds great significance in immigration law because it is integrated into the definition of “aggravated felony” in the immigration statutes.  An aggravated felony is a removable offense that not only makes someone deportable but also renders the person ineligible for most forms of relief from removal.  Congress has defined “aggravated felony” by creating a laundry list of offenses that become aggravated felonies for immigration purposes.  One of the items on that laundry list is 18 U.S.C. § 16, which addresses crimes of violence.

In Dimaya, the individual subject to deportation was convicted of first-degree burglary in California.  During his immigration removal proceedings, immigration adjudicators determined that his conviction was a crime of violence under section 16(b).  Section 16(b) defines a crime of violence as “any other offense that is a felony and that, by its nature, involves substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  Whether a conviction is an offense within the reach of section 16(b) depends on the categorical approach.  Adjudicators do not look at the facts specific to a conviction, but rather ask whether the offense ordinarily creates the risk referred to in the statute.

Relying on the Court’s 2015 decision in Johnson v. United States, the Court determined that section 16(b) is void because of the uncertainty and opaqueness in determining the facets of the ordinary case under the categorical approach.  This is too much for the Due Process Clause, according to the Court. Section 16(b) is too arbitrary and unpredictable.

Justice Gorsuch agreed that the statute is unconstitutionally vague.  In his concurring opinion, he said that while the void for vagueness doctrine is tied to the Due Process Clause, “it would be a mistake to overlook the doctrine’s equal debt to the separation of powers.”  Vague laws implicate separation of powers because vague laws leave the task of clarification to branches other than Congress.  These “structural worries” influenced Justice Gorsuch’s determination that the void for vagueness doctrine “enjoys a secure footing in the original understanding of the Constitution.”

Concerns about separation of powers play a role in a newly energized debate about the validity of administrative law.  One argument is that much of administrative law is invalid because it requires improper delegations of power from Congress to the other branches.  The newly energized debate holds interesting possibilities for immigration law, if immigration law is included in the project.  If immigration law is included, government power in immigration law needs a comprehensive reevaluation.  The Trump Administration has signaled that it is not concerned about government regulation when it comes to immigration, but that it is in other contexts.  For his part, Dimaya signals that Justice Gorsuch may use immigration law to advance his administrative law philosophy.  While Dimaya focused on the void for vagueness doctrine, Justice Gorsuch’s expressed concerns about separation of powers could translate to the debate about delegations of power in administrative law.


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