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Why Neil Gorsuch just voted with the Supreme Court’s liberals on an immigration case

Trump’s Supreme Court nominee ruled against the Trump administration. But he had his own reasons.

Neil Gorsuch Is Sworn In As Associate Justice To Supreme Court Chip Somodevilla/Getty Images

The Supreme Court just made it a little bit harder to deport some so-called “bad hombres” — with an assist from Trump appointee Neil Gorsuch.

In the case Sessions v. Dimaya, the Court struck down a provision of federal law that allows the federal government to deport legal immigrants — including green card holders — for committing a crime that isn’t specifically named in law but that the government considers a “crime of violence.”

Legal immigrants can be deported for committing “aggravated felonies” — a category that was limited to the most serious crimes when it was first introduced but which, since 1996, has expanded to include things that aren’t felonies at all. Federal statutes list a bunch of crimes as “aggravated felonies,” including some drug and immigration offenses.

But it also includes a provision saying that other crimes can be considered “aggravated felonies” if the government considers them a “crime of violence” — that is, if it contains a use or substantial risk of physical force. That provision is the one the Supreme Court just struck down.

The Trump administration attacked the ruling — but it doesn’t appear to have completely understood it. A Department of Homeland Security statement claimed that the decision would make it harder to deport immigrants for “sexual assault, kidnapping, and burglary.” But burglary is already listed as a specific “aggravated felony” — separately from the part of the law that got struck down — and since seeking a ransom is also a separate “aggravated felony,” most kidnapping offenses are likely still covered as well.

If the administration is mad, it has its own nominee to blame. Sort of.

The decision went 5-4, with Justice Neil Gorsuch, nominated last year by President Donald Trump, joining the Court’s liberal wing. But Gorsuch’s vote in the case (which he explained in a concurring opinion, rather than signing on to the main opinion written by Justice Elena Kagan in full) shouldn’t be seen as an indication that he’s going to side with liberals in immigration cases generally, because the rulings were only kind of about immigration.

They were really about the awkward fact that Supreme Court jurisprudence often holds the federal government to a higher standard in criminal court proceedings than civil ones — which means that people facing deportation have fewer rights than those facing even short prison terms.

Gorsuch sided with the Court’s liberals because he thinks the federal government has too much power

One of the reasons the terms “legal immigration” and “illegal immigration” are unhelpful is that they imply that the punishment for violating immigration laws — deportation — is a criminal punishment. It’s not. It’s a civil punishment that can only be ordered by special immigration courts.

And while immigrants without papers can be deported (whether they’ve committed a crime or not) simply because they don’t have papers, legal immigrants can also be deported for violating the terms of their legal status. One of the ways to violate that legal status is to commit an “aggravated felony.”

That matters to this case because the Supreme Court has already ruled 8-1, in the 2015 case Johnson v. US, that a catchall “crime of violence” provision in a criminal law was unconstitutionally vague. But the phrasing isn’t identical in the aggravated felony law — and more importantly, the government’s lawyers argued in this case, there’s Supreme Court precedent that the federal government should get more of the benefit of the doubt over due process questions in civil law than in criminal law, presumably because civil law doesn’t pose as serious a threat to an individual’s life and liberty. So it wasn’t clear whether the Court’s earlier decision applied.

The liberals on the Court, led by Kagan, decided that it did. They acknowledged the government’s argument that the standard is generally lower for civil cases, but they pointed to a different Supreme Court precedent to say that deportation cases aren’t like most civil cases. “That approach was demanded, we explained,” wrote Justice Kagan, “‘in view of the grave nature of deportation’ — a ‘drastic measure,’ often amounting to lifelong ‘banishment or exile’” (cleaned up for readability).

Chief Justice John Roberts, meanwhile, got two other justices (including Anthony Kennedy, typically a swing vote) to argue that the “crime of violence” provision in the aggravated felony law was more specifically written than the provision that got struck down a few years ago, so even if the criminal standard did apply, the law would still be kosher. And Clarence Thomas wrote a separate dissent questioning whether the Supreme Court even has the right to strike down federal laws for being too vague at all.

Justice Gorsuch was the lone conservative to vote to strike down the “crime of violence” provision. But he did not sign on to Justice Kagan’s opinion. And the concurrence he wrote instead makes it clear that Gorsuch’s reasons had very little to do with what he thinks about immigration law.

Gorsuch’s concurrence is largely a rebuttal to Thomas and a defense of the Supreme Court’s ability to strike down laws for vagueness. Not only can the Supreme Court do this, Gorsuch writes, but it has every bit as much right to do it when it thinks a civil law is too vague as when it thinks a criminal law is.

So Gorsuch actually disagrees that the seriousness of deportation is an important factor. In fact, he implies that deportation isn’t actually all that uniquely harsh — because civil penalties are often harsher than criminal ones:

Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes — and often harsher than the punishment for felonies. And not only are “punitive civil sanctions … rapidly expanding,” they are “sometimes more severely punitive than the parallel criminal sanctions for the same conduct.”

This perspective is more often associated with conservative judges than liberal ones. Conservatives tend to be skeptical of the government’s power to use civil penalties to enforce regulations and call for higher standards for the government to punish people for violating those laws.

Gorsuch isn’t saying, or even implying, that a company being fined is the same as an immigrant being deported. But his concurrence shows that he’s coming at the case from a different angle than the liberals are — one that isn’t really about immigration or deportation at all.

It is deeply weird that people fighting deportation don’t get the protections of criminal defendants

What’s noteworthy is that despite the Court’s disagreement on this case, no justice endorsed the government’s argument that the “crime of violence” phrase was constitutional because deportation was a civil proceeding. The dissents didn’t hinge on the criminal/civil distinction at all, Gorsuch argued it shouldn’t really exist, and the liberals argued that it exists but deportation is an exception that deserves special scrutiny.

None of them argued, straightforwardly, that an immigrant in deportation proceedings does not deserve the due process guarantees of a criminal defendant facing prison time. But that’s the implication of the idea that civil constitutional standards are different from criminal ones — something that is also true for other constitutional rights, like the right to an attorney, that are guaranteed in criminal court but not in immigration court.

When deportation wasn’t all that common, or when it was mostly for people convicted of crimes after they’d served their prison terms, that may not have seemed as important. But in the 21st century, tens (and sometimes hundreds) of thousands of immigrants are deported each year without being convicted of any crime. In that case, the only judge they’ve faced is an immigration judge, and their only day in court has been a civil court.

If the Supreme Court’s liberals — and even Gorsuch — think that civil laws don’t necessarily give the government more leeway to prosecute and punish defendants, it shows a deep discomfort with the way a lot of immigrants are being treated right now. The Court may never act on that discomfort. But it’s worth noting.

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