JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, PETITIONER v. JAMES GARCIA DIMAYA
No. 15-1498
SUPREME COURT OF THE UNITED STATES
April 17, 2018
Reargued October 2, 2017
584 U.S. ___
Argued January 17, 2017—CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OCTOBER TERM, 2017
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SESSIONS, ATTORNEY GENERAL v. DIMAYA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See
Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under
Held: The judgment is affirmed.
803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, concluding that §16‘s residual clause is unconstitutionally vague. Pp. 6-11, 16-25.
(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA‘s residual clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA‘s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime‘s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncertainty, ACCA‘s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA‘s residual clause,
(b) The Government identifies three textual discrepancies between ACCA‘s residual clause and
(1) First, the Government argues that
Second, the Government says that the
Third, the Government notes that
(2) The Government also relies on judicial experience with
JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts II and IV-A:
(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed
(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be abandoned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact-based approach is an untenable interpretation of
JUSTICE GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government‘s argument that a less-than-fair-notice standard should apply where (as here) a person faces only civil, not criminal, consequences from a statute‘s operation is unavailing. In the criminal context, the law generally must afford “ordinary people... fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard
KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opinion with respect to Parts II and IV-A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined as to Parts I-C-2, II-A-1, and II-B.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 15-1498
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, PETITIONER v. JAMES GARCIA DIMAYA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[April 17, 2018]
JUSTICE KAGAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, and an opinion with respect to Parts II and IV-A, in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join.
Three Terms ago, in Johnson v. United States, this Court held that part of a federal law‘s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute‘s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.
I
The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States.
The INA defines “aggravated felony” by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes.
“(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
“(b) any other 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.”
Section 16(b), the residual clause, is the part of the statute at issue in this case.
To decide whether a person‘s conviction “falls within the ambit” of that clause, courts use a distinctive form of what we have called the categorical approach. Leocal v. Ashcroft, 543 U. S. 1, 7 (2004). The question, we have explained, is not whether “the particular facts” underlying a conviction posed the substantial risk that
In the case before us, Immigration Judges employed that analysis to conclude that respondent James Dimaya is deportable as an aggravated felon. A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first-degree burglary under California law. See
While his appeal was pending, this Court held unconstitutional part of the definition of “violent felony” in the Armed Career Criminal Act (ACCA),
“any crime punishable by imprisonment for a term exceeding one year . . . that—
“(i) has as an element the use, attempted use, or
conviction. See, e.g., Descamps v. United States, 570 U. S. 254, 260-261 (2013); Moncrieffe v. Holder, 569 U. S. 184, 190-191 (2013).
threatened use of physical force against the person of another; or
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
§924(e)(2)(B) (emphasis added).
The italicized portion of that definition (like the similar language of
Relying on Johnson, the Ninth Circuit held that
II
“The prohibition of vagueness in criminal statutes,” our decision in Johnson explained, is an “essential” of due process, required by both “ordinary notions of fair play and the settled rules of law.” 576 U. S., at ___ (slip op., at 4) (quoting Connally v. General Constr. Co., 269 U. S. 385, 391 (1926)). The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have “fair notice” of the conduct a statute proscribes. Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972). And the doctrine
The Government argues that a less searching form of the void-for-vagueness doctrine applies here than in Johnson because this is not a criminal case. See Brief for Petitioner 13-15. As the Government notes, this Court has stated that “[the degree of vagueness that the Constitution [allows] depends in part on the nature of the enactment“: In particular, the Court has “expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498–499 (1982). The removal of an alien is a civil matter. See Arizona v. United States, 567 U. S. 387, 396 (2012). Hence, the Government claims, the need for clarity is not so strong; even a law too vague to support a conviction or sentence may be good enough to sustain a deportation order. See Brief for Petitioner 25-26.
But this Court‘s precedent forecloses that argument, because we long ago held that the most exacting vagueness standard should apply in removal cases. In Jordan v. De George, we considered whether a provision of immigration law making an alien deportable if convicted of a “crime involving moral turpitude” was “sufficiently defi-
Nothing in the ensuing years calls that reasoning into question. To the contrary, this Court has reiterated that deportation is “a particularly severe penalty,” which may be of greater concern to a convicted alien than “any potential jail sentence.” Jae Lee v. United States, 582 U. S. ___ (2017) (slip op., at 11) (quoting Padilla v. Kentucky, 559 U. S. 356, 365, 368 (2010)). And we have observed that as federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more “intimately related to the criminal process.” Chaidez v. United States, 568 U. S. 342, 352 (2013) (quoting Padilla, 559 U. S., at 365). What follows, as Jordan recognized, is the use of the same standard in the two settings.
For that reason, the Government cannot take refuge in a more permissive form of the void-for-vagueness doctrine than the one Johnson employed. To salvage §16‘s residual clause, even for use in immigration hearings, the Government must instead persuade us that it is materially clearer than its now-invalidated ACCA counterpart. That is the issue we next address, as guided by Johnson‘s analysis.
III
Johnson is a straightforward decision, with equally straightforward application here. Its principal section
“In the first place,” Johnson explained, ACCA‘s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a hypothesis about the crime‘s “ordinary case.” Id., at ___ (slip op., at 5). Under the clause, a court focused on neither the “real-world facts” nor the bare “statutory elements” of an offense. Ibid. Instead, a court was supposed to “imagine” an “idealized ordinary case of the crime“—or otherwise put, the court had to identify the “kind of conduct the ‘ordinary case’ of a crime involves.” Ibid. But how, Johnson asked, should a court figure that out? By using a “statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” Ibid. (internal quotation marks omitted). ACCA provided no guidance, rendering judicial accounts of the “ordinary case” wholly “speculative.” Ibid. Johnson gave as its prime example the crime of attempted burglary. One judge, contemplating the “ordinary case,” would imagine the “violent encounter” apt to ensue when a “would-be burglar [was] spotted by a police officer [or] private security guard.” Id., at ___ (slip op., at 5-6). Another judge would conclude that “any confrontation” was more “likely to consist of [an observer‘s] yelling ‘Who‘s there?’ and the burglar‘s running away.” Id., at ___ (slip op., at 6). But how could either judge really know?
Compounding that first uncertainty, Johnson continued, was a second: ACCA‘s residual clause left unclear what threshold level of risk made any given crime a “violent felony.” See ibid. The Court emphasized that this feature alone would not have violated the void-for-vagueness doctrine: Many perfectly constitutional statutes use imprecise terms like “serious potential risk” (as in ACCA‘s residual clause) or “substantial risk” (as in
“[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct; the law is full of instances where a man‘s fate depends on his estimating rightly... some matter of degree[.] The residual clause, however, requires application of the ‘serious potential risk’ standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain[,] this abstract inquiry offers significantly less predictability than one that deals with the actual facts.” Id., at ___ (slip op., at 12) (some internal quotation marks, citations, and alterations omitted).
So much less predictability, in fact, that ACCA‘s residual clause could not pass constitutional muster. As the Court again put the point, in the punch line of its decision: “By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause” violates the guarantee of due process. Id.,
Section 16‘s residual clause violates that promise in just the same way. To begin where Johnson did,
And
In sum,
IV
The Government and dissents offer two fundamentally different accounts of how
The essentials of JUSTICE THOMAS‘s position go as follows. Section 16(b), he says, cannot have one meaning, but could have one of two others. See post, at 27. The provision cannot demand an inquiry merely into the elements of a crime, because that is the province of
For anyone who has read Johnson, that argument will ring a bell. The dissent there issued the same invitation, based on much the same reasoning, to jettison the categorical approach in residual-clause cases. 576 U. S., at ___ (slip op., at 9-13) (opinion of ALITO, J.). The Court declined to do so. It first noted that the Government had not asked us to switch to a fact-based inquiry. It then observed that the Court “had good reasons” for originally adopting the categorical approach, based partly on ACCA‘s text (which, by the way, uses the word “involves” identically) and partly on the “utter impracticability” of the alternative. Id., at ___ (slip op., at 13) (majority opinion). “The
The same is true here—except more so. To begin where Johnson did, the Government once again “has not asked us to abandon the categorical approach in residual-clause cases.” Ibid. To the contrary, and as already noted, the Government has conceded at every step the correctness of that statutory construction. See supra, at 9. And this time, the Government‘s decision is even more noteworthy than before—precisely because the Johnson dissent laid out the opposite view, presenting it in prepackaged form for the Government to take off the shelf and use in the
Perhaps one reason for the Government‘s reluctance is that such an approach would generate its own constitutional questions. As JUSTICE THOMAS relates, post, at 22, 28, this Court adopted the categorical approach in part to “avoid[] the Sixth Amendment concerns that would arise from sentencing courts’ making findings of fact that properly belong to juries.” Descamps v. United States, 570 U. S. 254, 267 (2013). JUSTICE THOMAS thinks that issue need not detain us here because “the right of trial by jury ha[s] no application in a removal proceeding.” Post, at 28 (internal quotation marks omitted). But although this particular case involves removal,
In any event,
And finally, the “utter impracticability“—and associated inequities—of such an interpretation is as great in the one statute as in the other. Ibid. This Court has often described the daunting difficulties of accurately “reconstruct[ing],” often many years later, “the conduct underlying [a] conviction.” Ibid.; Descamps, 570 U. S., at 270; Taylor, 495 U. S., at 601-602. According to JUSTICE THOMAS, we need not worry here because immigration judges have some special factfinding talent, or at least experience, that would mitigate the risk of error attaching to that endeavor in federal courts. See post, at 30. But we cannot see putting so much weight on the superior factfinding prowess of (notoriously overburdened) immigration judges. And as we have said before,
Agreeing that is so, the Government (joined by THE CHIEF JUSTICE) takes a narrower path to the same desired result. It points to three textual discrepancies between ACCA‘s residual clause and
1
The Government—first and foremost—relies on
To assess that claim, start with the meaning of
Because that is so,
And that is just what courts did when applying ACCA‘s residual clause—and for the same reason. True, that clause lacked an express temporal limit. But not a single
The upshot is that the phrase “in the course of” makes no difference as to either outcome or clarity. Every offense that could have fallen within ACCA‘s residual clause might equally fall within
phrase, then, cannot cure the statutory indeterminacy Johnson described.
Second, the Government (and again, THE CHIEF JUSTICE‘S dissent, see post, at 6) observes that
But once more, we struggle to see how that statutory distinction would matter. To begin with, the first of the Government‘s two steps—defining the conduct in the ordinary case—is almost always the difficult part. Once that is accomplished, the assessment of consequences tends to follow as a matter of course. So, for example, if a crime is likely enough to lead to a shooting, it will also be likely enough to lead to an injury. And still more important,
Third, the Government briefly notes that
We readily accept a part of that argument. This Court for several years looked to ACCA‘s listed crimes for help in giving the residual clause meaning. See, e.g., Begay v. United States, 553 U. S. 137, 142 (2008); James, 550 U. S., at 203. But to no avail. As the Government relates (and Johnson explained), the enumerated crimes were themselves too varied to provide such assistance. See Brief for Petitioner 38-40; 576 U. S., at ___ (slip op., at 12). Trying to reconcile them with each other, and then compare them
But the Government‘s conclusion does not follow. To say that ACCA‘s listed crimes failed to resolve the residual clause‘s vagueness is hardly to say they caused the problem. Had they done so, Johnson would not have needed to strike down the clause. It could simply have instructed courts to give up on trying to interpret the clause by reference to the enumerated offenses. (Contrary to THE CHIEF JUSTICE‘S suggestion, see post, at 12, discarding an interpretive tool once it is found not to actually aid in interpretation hardly “expand[s]” the scope of a statute.) That Johnson went so much further—invalidating a statutory provision rather than construing it independently of another—demonstrates that the list of crimes was not the culprit. And indeed, Johnson explicitly said as much. As described earlier, Johnson found the residual clause‘s vagueness to reside in just “two” of its features: the ordinary-case requirement and a fuzzy risk standard. See 576 U. S., at ___ (slip op., at 5-6); supra, at 7-8. Strip away the enumerated crimes—as Congress did in
2
Faced with the two clauses’ linguistic similarity, the Government relies significantly on an argument rooted in judicial experience. Our opinion in Johnson, the Government notes, spoke of the longstanding “trouble” that this Court and others had in “making sense of [ACCA‘s] residual clause.” 576 U. S., at ___ (slip op., at 9); see Brief for Petitioner 45. According to the Government,
But in fact, a host of issues respecting
Nor does this Court‘s prior handling of
tions in that order, rather than its opposite, provides no reason to disregard the indeterminacy that
And of course, this Court‘s experience in deciding ACCA cases only supports the conclusion that
V
Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA‘s] residual clause conspire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk threshold, it necessarily “devolv[ed] into guesswork and intuition,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA‘s residual clause,
It is so ordered.
No. 15-1498
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, PETITIONER v. JAMES GARCIA DIMAYA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[April 17, 2018]
JUSTICE GORSUCH, concurring in part and concurring in the judgment.
Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown‘s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. 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.
The law before us today is such a law. 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, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force?
The truth is, no one knows. The law‘s silence
*
I begin with a foundational question. Writing for the Court in Johnson v. United States, 576 U. S. ___ (2015), Justice Scalia held the residual clause of the Armed Career Criminal Act void for vagueness because it invited “more unpredictability and arbitrariness” than the Constitution allows. Id., at ___ (slip op., at 6). Because the residual clause in the statute now before us uses almost exactly the same language as the residual clause in Johnson, respect for precedent alone would seem to suggest that both clauses should suffer the same judgment.
But first in Johnson and now again today JUSTICE THOMAS has questioned whether our vagueness doctrine can fairly claim roots in the Constitution as originally understood. See, e.g., post, at 2-6 (dissenting opinion); Johnson, supra, at ___ (opinion concurring in judgment) (slip op., at 6-18). For its part, the Court has yet to offer a reply. I believe our colleague‘s challenge is a serious and thoughtful one that merits careful attention. At day‘s end, though, it is a challenge to which I find myself unable to subscribe. Respectfully, I am persuaded instead that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.
Consider first the doctrine‘s due process underpinnings. The
Perhaps the most basic of due process‘s customary protections is the demand of fair notice. See Connally v. General Constr. Co., 269 U. S. 385, 391 (1926); see also Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 543 (2009) (“From the inception of Western culture, fair notice has been recognized as an essential element of the rule of law“). Criminal indictments at common law had to provide “precise and sufficient certainty” about the charges
The same held true in civil cases affecting a person‘s life, liberty, or property. A civil suit began by obtaining a writ—a detailed and specific form of action asking for particular relief. Bellia, Article III and the Cause of Action, 89 Iowa L. Rev. 777, 784-786 (2004); Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 914-915 (1987). Because the various civil writs were clearly defined, English subjects served with one would know with particularity what legal requirement they were alleged to have violated and, accordingly, what would be at issue in court. Id., at 917; Moffitt, Pleadings in the Age of Settlement, 80 Ind. L. J. 727, 731 (2005). And a writ risked being held defective if it didn‘t provide fair notice. Goldington v. Bassingburn, Y. B. Trin. 3 Edw. II, f. 27b (1310) (explaining that it was “the law of the land” that “no one [could] be taken by surprise” by having to “answer in court for what [one] has not been warned to answer“).
The requirement of fair notice applied to statutes too. Blackstone illustrated the point with a case involving a statute that made “stealing sheep, or other cattle” a felony. 1 Blackstone 88 (emphasis deleted). Because the term “cattle” embraced a good deal more then than it does now (including wild animals, no less), the court held the statute failed to provide adequate notice about what it did and
This tradition of courts refusing to apply vague statutes finds parallels in early American practice as well. In The Enterprise, 8 F. Cas. 732 (No. 4,499) (CC NY 1810), for example, Justice Livingston found that a statute setting the circumstances in which a ship may enter a port during an embargo was too vague to be applied, concluding that “the court had better pass” the statutory terms by “as unintelligible and useless” rather than “put on them, at great uncertainty, a very harsh signification, and one which the legislature may never have designed.” Id., at 735. In United States v. Sharp, 27 F. Cas. 1041 (No. 16,264) (CC Pa. 1815), Justice Washington confronted a statute which prohibited seamen from making a “revolt.” Id., at 1043. But he was unable to determine the meaning of this provision “by any authority... either in the common, admiralty, or civil law.” Ibid. As a result, he declined to “recommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be.” Ibid.1
Nor was the concern with vague laws confined to the most serious offenses like capital crimes. Courts refused to apply vague laws in criminal cases involving relatively modest penalties. See, e.g., McJunkins v. State, 10 Ind. 140, 145 (1858). They applied the doctrine in civil cases too. See, e.g., Drake v. Drake, 15 N. C. 110, 115 (1833); Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg. 173, 177 (Pa. 1842). As one court put it, “all laws” “ought to be expressed in such a manner as that its meaning may be unambiguous, and in such language as may be readily understood by those upon whom it is to operate.” McConvill v. Mayor and Aldermen of Jersey City, 39 N. J. L. 38, 42 (1876). “It is impossible... to dissent from the doctrine of Lord Coke, that acts of parliament ought to be plainly and clearly, and not cunningly and darkly penned, especially in penal matters.” Id., at 42-43.
These early cases, admittedly, often spoke in terms of construing vague laws strictly rather than declaring them void. See, e.g., post, at 4-5 (opinion of THOMAS, J.); Johnson, 576 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 8-10). But in substance void the law is often exactly
What history suggests, the structure of the Constitution confirms. Many of the Constitution‘s other provisions presuppose and depend on the existence of reasonably clear laws. Take the
Although today‘s vagueness doctrine owes much to the
From this division of duties, it comes clear that legislators may not “abdicate their responsibilities for setting the standards of the criminal law,” Smith v. Goguen, 415 U. S. 566, 575 (1974), by leaving to judges the power to decide “the various crimes includable in [a] vague phrase,” Jordan v. De George, 341 U. S. 223, 242 (1951) (Jackson, J., dissenting). For “if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large[,] [t]his would, to some extent, substitute the judicial for the legislative department of government.” Kolender v. Lawson, 461 U. S. 352, 358, n. 7 (1983) (internal quotation marks omitted). Nor is the worry only that vague laws risk allowing judges to assume legislative power. Vague laws also threaten to transfer legislative power to police and prosecutors, leaving to them the job of shaping a vague statute‘s contours through their enforcement decisions. See Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972)
These structural worries are more than just formal ones. Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.” Jordan, supra, at 242 (Jackson, J., dissenting). Nor do judges and prosecutors act in the open and accountable forum of a legislature, but in the comparatively obscure confines of cases and controversies. See, e.g., A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 151 (1962) (“A vague statute delegates to administrators, prosecutors, juries, and judges the authority of ad hoc decision, which is in its nature difficult if not impossible to hold to account, because of its narrow impact“). For just these reasons, Hamilton warned, while “liberty can have nothing to fear from the judiciary alone,” it has “every thing to fear from” the union of the judicial and legislative powers. The Federalist No. 78, at 466. No doubt, too, for reasons like these this Court has held “that the more important aspect of vagueness doctrine ‘is not actual notice, but... the requirement that a legislature establish minimal guidelines to govern law enforcement‘” and keep the separate branches within their proper spheres. Kolender, supra, at 358 (quoting Goguen, supra, at 575 (emphasis added)).
*
Persuaded that vagueness doctrine enjoys a secure
First principles aside, the government suggests that at least this Court‘s precedents support adopting a less-than-fair-notice standard for civil cases. But even that much I do not see. This Court has already expressly held that a “stringent vagueness test” should apply to at least some civil laws—those abridging basic
498. And the Court has sometimes “expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Id., at 498-499. But to acknowledge these truisms does nothing to prove that civil laws must always be subject to the government‘s emaciated form of review.
In fact, if the severity of the consequences counts when deciding the standard of review, shouldn‘t we also take account of the fact that today‘s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. 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.” Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L. J. 1795, 1798 (1992) (emphasis added). Given all this, any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent‘s current threshold than to suggest the civil standard should be buried below it.
Retreating to a more modest line of argument, the government emphasizes that this case arises in the immigration context and so implicates matters of foreign relations where the Executive enjoys considerable constitutional authority. But to acknowledge that the President has
Alternatively still, JUSTICE THOMAS suggests that, at least at the time of the founding, aliens present in this country may not have been understood as possessing any rights under the Due Process Clause. For support, he points to the Alien Friends Act of 1798.
Besides, none of this much matters. Whether Madison or his adversaries had the better of the debate over the constitutionality of the Alien Friends Act, Congress is surely free to extend existing forms of liberty to new classes of persons—liberty that the government may then take only after affording due process. See, e.g., Sandin v. Conner, 515 U.S. 472, 477–478 (1995); Easterbrook, Substance and Due Process, 1982 S. Ct. Rev. 85, 88 (“If . . . the constitution, statute, or regulation creates a liberty or property interest, then the second step—determining ‘what process is due‘—comes into play“). Madison made
*
With the fair notice standard now in hand, all that remains is to ask how it applies to the case before us. And here at least the answer comes readily for me: to the extent it requires an “ordinary case” analysis, the portion of the Immigration and Nationality Act before us fails the fair notice test for the reasons Justice Scalia identified in Johnson and the Court recounts today.
Just like the statute in Johnson, the statute here instructs courts to impose special penalties on individuals previously “convicted of” a “crime of violence.”
Any lingering doubt is resolved for me by taking account of just some of the questions judges trying to apply the statute using an ordinary case analysis would have to confront. 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. Is the court supposed to hold evidentiary hearings to sort them out, entertaining experts with competing narratives and statistics, before deciding what the ordinary case of a given crime looks like and how much risk of violence it poses? What is the judge to do if there aren‘t any reliable statistics available? Should (or must) the judge predict the effects of new technology on what qualifies as the ordinary case? After all, surely the risk of injury calculus for crimes like larceny can be expected to change as more thefts are committed by computer rather than by gunpoint. Or instead of requiring real evidence, does the statute mean to just leave it all to a judicial hunch? And on top of all that may be the most difficult question yet: at what level of generality is the inquiry supposed to take place? Is a court supposed to pass on the ordinary case of burglary in the relevant neighborhood or county, or should it focus on statewide or even national experience? How is a judge to know? How are the people to know?
The implacable fact is that this isn‘t your everyday ambiguous statute. It leaves the people to guess about what the law demands—and leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statute‘s
*
Having said this much, it is important to acknowledge some limits on today‘s holding too. I have proceeded on the premise that the Immigration and Nationality Act, as it incorporates
But any more than that I would not venture. In response to the problems engendered by the ordinary case analysis, JUSTICE THOMAS suggests that we should overlook the government‘s concession about the propriety of that approach; reconsider our precedents endorsing it; and read the statute as requiring us to focus on the facts of the alien‘s crime as committed rather than as the facts appear in the ordinary case of conviction. Post, at 20–32. But normally courts do not rescue parties from their concessions, maybe least of all concessions from a party as able to protect its interests as the federal government. And normally, too, the crucible of adversarial testing is crucial to sound judicial decisionmaking. We rely on it to “yield insights (or reveal pitfalls) we cannot muster guided only
While sometimes we may or even must forgo the adversarial process, I do not see the case for doing so today. Maybe especially because I am not sure JUSTICE THOMAS‘S is the only available alternative reading of the statute we would have to consider, even if we did reject the government‘s concession and wipe the precedential slate clean. We might also have to consider an interpretation that would have courts ask not whether the alien‘s crime of conviction ordinarily involves a risk of physical force, or whether the defendant‘s particular crime involved such a risk, but whether the defendant‘s crime of conviction always does so. After all, the language before us requires a conviction for an “offense . . . that, by its nature, involves a substantial risk of physical force.”
It‘s important to note the narrowness of our decision today in another respect too. Vagueness doctrine represents a procedural, not a substantive, demand. It does not forbid the legislature from acting toward any end it wishes, but only requires it to act with enough clarity that reasonable people can know what is required of them and judges can apply the law consistent with their limited office. Our history surely bears examples of the judicial misuse of the so-called “substantive component” of due
Today‘s decision sweeps narrowly in yet one more way. By any fair estimate, Congress has largely satisfied the procedural demand of fair notice even in the INA provision before us. The statute lists a number of specific crimes that can lead to a lawful resident‘s removal—for example, murder, rape, and sexual abuse of a minor.
But those laws are not this law. And while the statute before us doesn‘t rise to the level of threatening death for “pretended offences” of treason, no one should be surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it. A government of laws and not of men can never tolerate that arbitrary power. And, in my judgment, that foundational principle dictates today‘s result. Because I understand them to be consistent with what I have said here, I join Parts I, III, IV–B, and V of the Court‘s opinion and concur in the judgment.
In Johnson v. United States, 576 U. S. ___, ___ (2015) (slip op., at 5), we concluded that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, given the “indeterminacy of the wide-ranging inquiry” it required. Today, the Court relies wholly on Johnson—but only some of Johnson—to strike down another provision,
I
The term “crime of violence” appears repeatedly throughout the Federal Criminal Code.
“(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
“(b) any other 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.”
This definition of “crime of violence” is also incorporated in
Those consequences came to pass in respondent James Dimaya‘s case. An Immigration Judge and the Board of Immigration Appeals interpreted
The parties begin by disputing whether a criminal or more relaxed civil vagueness standard should apply in resolving Dimaya‘s challenge. A plurality of the Court rejects the Government‘s argument in favor of a civil standard, because of the “grave nature of deportation,” Jordan v. De George, 341 U. S. 223, 231 (1951); see ante, at 6 (plurality opinion); JUSTICE GORSUCH does so for broader reasons, see ante, at 10–15 (GORSUCH, J., concurring in part and concurring in judgment). I see no need to resolve which standard applies, because I would hold that
II
This is not our first encounter with
Leocal thus provides a model for how courts should assess whether a particular crime “by its nature” involves a risk of the use of physical force. At the outset, our opinion set forth the elements of the Florida DUI statute, which made it a felony “for a person to operate a vehicle while under the influence and, ‘by reason of such operation, caus[e] . . . [s]erious bodily injury to another.‘” 543 U. S., at 7. Our
The Court holds that the same provision we had no trouble applying in Leocal is in fact incapable of reasoned application. The sole justification for this turnabout is the resemblance between the language of
In Johnson, we concluded that the ACCA residual clause (the “or otherwise” language) gave rise to two forms of intractable uncertainty, which “conspire[d]” to render the provision unconstitutionally vague. 576 U. S., at ___ (slip op., at 5). First, the residual clause asked courts to gauge the “potential risk” of “physical injury” posed by the conduct involved in the crime. Ibid. That inquiry, we determined, entailed not only an evaluation of the “criminal‘s behavior,” but also required courts to consider “how the idealized ordinary case of the crime subsequently plays out.” Ibid. Second, the residual clause obligated courts to compare that risk to an indeterminate standard—one that was inextricably linked to the provision‘s four enumerated crimes, which presented differing kinds and degrees of risk. Id., at ___ (slip op., at 6). This murky confluence of features, each of which “may [have been] tolerable in isolation,” together “ma[de] a task for us which at best could be only guesswork.” Id., at ___ (slip op., at 10).
To begin,
The “serious potential risk” standard also forced courts to assess in an expansive way the “collateral consequences” of the perpetrator‘s acts. For example, courts had to take into account the concern that others might cause injury in attempting to apprehend the offender. See Sykes v. United States, 564 U. S. 1, 8–9 (2011).
Second,
Third,
Why does any of this matter? Because it mattered in Johnson. More precisely, the expansive language in the ACCA residual clause contributed to our determination that the clause gave rise to “grave uncertainty about how to estimate the risk posed by a crime.” 576 U. S., at ___ (slip op., at 5). “Critically,” we said—a word that tends to mean something—“picturing the criminal‘s behavior is not enough.” Ibid. (emphasis added). Instead, measuring “potential risk” “seemingly require[d] the judge to imagine how the idealized ordinary case of the crime subsequently plays out.” Ibid. (emphasis added). Not so here. In applying
Those three distinctions—the unadorned reference to “risk,” the focus on the offender‘s own active employment of force, and the “in the course of committing” limitation—also mean that many hard cases under ACCA are easier under
Failure to report to a penal institution, the subject of Chambers v. United States, 555 U. S. 122 (2009), is another crime “whose treatment becomes more obvious under
DUI offenses are yet another example. Because
Which brings me to the second part of the Court‘s analysis: its objection that
In our first foray, James, we resolved the case by asking whether the risk posed by the crime of attempted burglary was “comparable to that posed by its closest analog among the enumerated offenses,” which was completed burglary. 550 U. S., at 203. While that rule “[took] care of attempted burglary,” it “offer[ed] no help at all with respect to the vast majority of offenses, which have no apparent analog among the enumerated crimes.” Johnson, 576 U. S., at ___ (slip op., at 7). The James dissent, for its part, would have determined the requisite degree of risk from the least dangerous of the enumerated crimes, and compared the offense to that. 550 U. S., at 218–219 (opinion of Scalia, J.). But that approach also proved to be harder than it sounded. See id., at 219–227.
After James came Begay, in which we concluded that
The enumerated offenses, and our Court‘s failed attempts to make sense of them, were essential to Johnson‘s conclusion that the residual clause “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id., at ___ (slip op., at 6). As Johnson explained, the issue was not that the statute employed a fuzzy standard. That kind of thing appears in the statute books all the time. Id., at ___ (slip op., at 6, 12). In the majority‘s retelling today, the difficulty inhered solely in the fact that the statute paired such a standard with the ordinary case inquiry. See ante, at 8, 10–11, 21. But that account sidesteps much of Johnson‘s reasoning. See 576 U. S., at ___ (slip op., at 4–5, 6, 7–9, 12). Our opinion emphasized that the word “otherwise” “force[d]” courts to interpret the amorphous standard “in light of” the four enumerated crimes, which are “not much more similar to one another in kind than in degree of risk posed.” Id., at ___ (slip op., at 6, 8). Or,
With
In its effort to recast a considerable portion of Johnson as dicta, the majority speculates that if the enumerated offenses had truly mattered to the outcome, the Court would have told lower courts to “give up on trying to interpret the clause by reference to” those offenses, rather than striking down the provision entirely. Ante, at 21. No litigant in Johnson suggested that solution, which is not surprising. Such judicial redrafting could have expanded the reach of the criminal provision—surely a job for Con
In any event, I doubt the majority’s proposal would have done the trick. And that is because the result in Johnson did not follow from the presence of one frustrating textual feature or another. Quite the opposite: The decision emphasized that it was the “sum” of the “uncertainties” in the ACCA residual clause, confirmed by years of experience, that “convince[d]” us the provision was beyond salvage. Johnson, 576 U. S., at 602 (slip op., at 10). Those failings do not characterize the provision at issue here.
III
The more constrained inquiry required under
Because I would rely on those distinctions to uphold
The Court does the opposite, and the ramifications of that decision are significant. First, of course, today’s holding invalidates a provision of the Immigration and Nationality Act—part of the definition of “aggravated felony”—on which the Government relies to “ensure that dangerous criminal aliens are removed from the United States.” Brief for United States 54. Contrary to the Court’s back-of-the-envelope assessment, see ante, at 23, n. 12, the Government explains that the definition is “critical” for “numerous” immigration provisions. Brief for United States 12.
In addition,
Because Johnson does not compel today’s result, I respectfully dissent.
I agree with THE CHIEF JUSTICE that
While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as
I
I continue to harbor doubts about whether the vagueness doctrine can be squared with the original meaning of the
A
The
First, the vagueness doctrine is not legitimate unless the “law of the land” view of due process is incorrect. Under that view, due process “require[s] only that our Government. . . proceed . . . according to written constitutional and statutory provision[s] before depriving someone of life, liberty, or property.” Nelson v. Colorado, 581 U. S. 128, ___, n. 1 (2017) (THOMAS, J., dissenting) (slip op., at 2, n. 1) (internal quotation marks omitted). More than a half century after the founding, the Court rejected this view of due process in Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856). See id., at 276 (holding that the
2
Even under Murray’s Lessee, the vagueness doctrine is legitimate only if it is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.” Id., at 277. That proposition is dubious. Until the end of the 19th century, “there is little indication that anyone believed that courts had the power under the
The difference between the traditional rule of lenity and
Tellingly, the modern vagueness doctrine emerged at a time when this Court was actively interpreting the
This Court also has a bad habit of invoking the
3
Even assuming the
Less than a decade after the ratification of the Bill of Rights, the founding generation had an extensive debate about the relationship between the Constitution and federal removal statutes. In 1798, the Fifth Congress enacted the Alien Acts. One of those Acts, the Alien Friends Act, gave the President unfettered discretion to expel any aliens “he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof.” An Act Concerning Aliens §1, 1 Stat. 571. This statute was modeled after the Aliens Act 1793 in England, which similarly gave the King unfettered discretion to expel aliens as he “shall think necessary for the publick Security.” 33 Geo. III, ch. 4, §18, in 39 Eng. Stat. at Large 16. Both the Fifth Congress and the States thoroughly debated the Alien Friends Act. Virginia and Kentucky enacted resolutions (anonymously drafted by Madison and Jefferson) opposing the Act, while 10 States enacted counter-resolutions condemning the views of Virginia and Kentucky. See Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Int’l L. 63, 85, 103 (2002).
The Jeffersonian Democratic-Republicans, who viewed the Alien Friends Act as a threat to their party and the institution of slavery,4 raised a number of constitutional
The Federalists gave two primary responses to this due process argument. First, the Federalists argued that the rights of aliens were governed by the law of nations, not the Constitution. See, e.g., Randolph, Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, pp. 34–35 (1850) (Virginia Debates) (statement of George K. Taylor) (arguing that aliens “were not a party to the [Constitution]” and that “cases between the government and
Second, the Federalists responded that the expulsion of aliens “did not touch life, liberty, or property.” Virginia Debates 34. The founding generation understood the phrase “life, liberty, or property” to refer to a relatively narrow set of core private rights that did not depend on the will of the government. See Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. 665, ___ (2015) (THOMAS, J., dissenting) (slip op., at 9–10); Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 566–568 (2007) (Nelson). Quasi-private rights—“privileges” or “franchises” bestowed by the government on individuals—did not qualify and could be taken away without judicial process. See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. 138, ___ (2015) (THOMAS, J., dissenting) (slip op., at 12); Nelson 567–569. The Federalists argued that an alien’s right to reside in this country was one such privilege. See, e.g., Virginia Debates 34 (arguing that “ordering away an alien . . . was not a matter of right, but of favour,” which did not require a jury trial); Report of the
After the Alien Friends Act lapsed in 1800, Congress did not enact another removal statute for nearly a century. The States enacted their own removal statutes during this period, see G. Neuman, Strangers to the Constitution 19–43 (1996), and I am aware of no decision questioning the legality of these statutes under State due-process or law-of-the-land provisions. Beginning in the late 19th century, the Federal Government reinserted itself into the regulation of immigration. When this Court was presented with constitutional challenges to Congress’ removal laws, it initially rejected them for many of the same reasons that
It was not until the 20th century that this Court held that nonpenal removal statutes could violate the
Thus, for more than a century after the founding, it was,
B
Instead of a longstanding procedure under Murray’s Lessee, perhaps the vagueness doctrine is really a way to enforce the separation of powers—specifically, the doctrine of nondelegation. See Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1806 (2012) (“Vague statutes have the effect of delegating lawmaking authority to the executive”). Madison raised a similar objection to the Alien Friends Act, arguing that its expansive language effectively allowed the President to exercise legislative (and judicial) power. See Madison’s Report 369–371. And this Court’s precedents have occasionally described the vagueness doctrine in terms of nondelegation. See, e.g., Grayned v. City of Rockford, 408 U. S. 104, 108–109 (1972) (“A vague law impermissibly delegates basic policy matters”). But they have not been consistent on this front. See, e.g., Aptheker v. Secretary of State, 378 U. S. 500, 516 (1964) (“The objectionable quality of vagueness . . . does not depend upon . . . unchanneled delegation of legislative powers”); Maynard v. Cartwright, 486 U. S. 356, 361 (1988) (“Objections to vagueness under the
I agree that the Constitution prohibits Congress from delegating core legislative power to another branch. See Department of Transportation v. Association of American Railroads, 575 U. S. 43, ___ (2015) (AAR) (THOMAS, J.,
Respondent does not argue that
If
Blackstone—one of the political philosophers whose
Instead of the Executive, perhaps
C
1
I need not resolve these historical questions today, as this case can be decided on narrower grounds. If the vagueness doctrine has any basis in the original meaning of the
2
This Court’s precedents likewise recognize that, outside the First Amendment context, a challenger must prove that the statute is vague as applied to him. See Holder v. Humanitarian Law Project, 561 U. S. 1, 18–19 (2010); United States v. Williams, 553 U. S. 285, 304 (2008); Maynard, 486 U. S., at 361; Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495, and n. 7 (1982) (collecting cases). Johnson did not overrule these precedents. While Johnson weakened the principle that a facial challenge requires a statute to be vague “in all applications,” 576 U. S., at 603 (slip op., at 11) (emphasis added), it did not address whether a statute must be vague as applied to the person challenging it. That question did not arise because the Court concluded that ACCA’s residual
In my view,
That same risk is present with respect to respondent‘s statute of conviction—first-degree residential burglary,
Drawing on Johnson and the decision below, the Court suggests that residential burglary might not be a crime of violence because “‘only about seven percent of burglaries actually involve violence.‘” Ante, at 9, n. 3 (citing Dimaya v. Lynch, 803 F. 3d 1110, 1116, n. 7 (CA9 2015)); see Bureau of Justice Statistics, S. Catalano, National Crime
3
Finally, if facial vagueness challenges are ever appropriate, I adhere to my view that a law is not facially vague “‘[i]f any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law.‘” Morales, 527 U. S., at 112 (THOMAS, J., dissenting) (quoting Kolender, 461 U. S., at 370-371 (White, J., dissenting)). The residual clause of ACCA had such a core. See Johnson, 576 U. S., at ___ (slip op., at 10); id., at ___ (
II
Even taking the vagueness doctrine and Johnson at face value, I disagree with the Court‘s decision to invalidate
But if the categorical approach renders
A
1
The categorical approach originated with Justice Blackmun‘s opinion for the Court in Taylor v. United States, 495 U. S. 575 (1990). The question in Taylor was whether ACCA‘s reference to “burglary” meant burglary
Although Taylor was interpreting one of ACCA‘s enumerated offenses, this Court later extended the categorical approach to ACCA‘s residual clause. See James, 550 U. S., at 208. That extension required some reworking. Because ACCA‘s enumerated-offenses clause asks whether a prior conviction “is burglary, arson, or extortion,”
Taylor gave a few reasons why the categorical approach was the correct reading of ACCA, see 495 U. S., at 600-601, but the “heart of the decision” was the Court‘s concern with limiting the amount of evidence that the parties could introduce at sentencing. Shepard v. United States, 544 U. S. 13, 23 (2005). Specifically, the Court was worried about potential violations of the Sixth Amendment. If the parties could introduce evidence about the defendant‘s underlying conduct, then sentencing proceedings might devolve into a full-blown minitrial, with factfinding by the judge instead of the jury. See id., at 24-26; Taylor, supra, at 601. While this Court‘s decision in Almendarez-Torres v. United States, 523 U. S. 224 (1998), allows judges to find facts about a defendant‘s prior convictions, a full-blown minitrial would look “too much like” the kind of factfinding that the Sixth Amendment requires the jury to conduct. Shepard, 544 U. S., at 25. By construing ACCA to require a categorical approach, then, the Court was following “[t]he rule of reading statutes to avoid serious risks of unconstitutionality.” Ibid.
2
I disagreed with the Court‘s decision to extend the categorical approach to ACCA‘s residual clause. See James, 550 U. S., at 231-232 (dissenting opinion). The categorical approach was an “unnecessary exercise,” I explained, because it created the same Sixth Amendment problem that it tried to avoid. Id., at 231. Absent waiver, a defendant has the right to have a jury find “every fact that is by law a basis for imposing or increasing punishment,” including the fact of a prior conviction. Apprendi v. New Jersey, 530 U. S. 466, 501 (2000) (THOMAS, J., concurring). The exception recognized in Almendarez-Torres for prior convictions is an aberration, has been seriously undermined by subsequent precedents, and should be reconsidered. See Mathis v. United States, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring) (slip op., at 1); Shep-ard, supra, at 27-28 (THOMAS, J., concurring in part and
B
My objection aside, the ordinary-case approach soon created problems of its own. The Court‘s attempt to avoid the Scylla of the Sixth Amendment steered it straight into the Charybdis of the Fifth. The ordinary-case approach that was created to honor the individual right to a jury is now, according to the Court, so vague that it deprives individuals of due process.
I see no good reason for the Court to persist in reading the ordinary-case approach into
1
The text of
“(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
“(b) any other 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.”
At first glance,
Although both interpretations are linguistically possible, several factors indicate that the underlying-conduct approach is the better one. To begin,
A comparison of
The first option is to consult the underlying facts of the alien‘s crime and then assess its riskiness. This approach would provide a definitive answer in every case. And courts are already familiar with this kind of inquiry. Cf. Johnson, supra, at ___ (slip op., at 12) (noting that “dozens” of similarly worded laws ask courts to assess “the riskiness of conduct in which an individual defendant engages on a particular occasion“). Nothing suggests that Congress imposed a more limited inquiry when it enacted
The second option is to imagine the “ordinary case” of the alien‘s crime and then assess the riskiness of that hypothetical offense. But the phrase “ordinary case” does not appear in the statute. And imagining the ordinary case, the Court reminds us, is “hopeless[ly] indetermina[te],” “wholly ‘speculative,‘” and mere “guesswork.” Ante, at 7, 24 (quoting Johnson, supra, at ___ (slip op., at 5, 7)); see also Chambers, supra, at 133 (opinion of ALITO, J.) (observing that the categorical approach is “nearly impossible to apply consistently“). Because courts disfavor interpretations that make a statute impossible to apply, see A. Scalia & B. Garner, Reading Law 63 (2012), this Court should reject the ordinary-case approach for
2
That the categorical approach is not the better reading of
If constitutional avoidance applies here at all, it requires us to reject the categorical approach for
In Johnson, the Court declined to adopt the underlying-conduct approach for ACCA‘s residual clause. See 576 U. S., at ___ (slip op., at 12-13). The Court concluded that the categorical approach was the only reasonable reading of ACCA because the residual clause uses the word “convictions.” Id., at ___ (slip op., at 13). The Court also stressed the “utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction.” Ibid.
Neither of these arguments is persuasive with respect to the INA. Moreover, this Court has already rejected them. In Nijhawan, this Court unanimously concluded that one of the aggravated felonies in the INA—“an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,”
There are additional reasons why the practical problems identified in Johnson should not matter for
In short, we should not blithely assume that the reasons why this Court adopted the categorical approach for ACCA‘s residual clause also apply to the INA‘s list of aggravated felonies. As Nijhawan explained, “the ‘aggravated felony’ statute, unlike ACCA, contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed.” 557 U. S., at 38. “The question” in each case is “to which category [the aggravated felony] belongs.” Ibid. As I have explained,
3
I see no prudential reason for maintaining the categorical approach for
Nor should stare decisis prevent us from rejecting the categorical approach for
*
*
*
The Court‘s decision today is triply flawed. It unnecessarily extends our incorrect decision in Johnson. It uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling into question countless more). And it does all this in the name of a statutory interpretation that we should have discarded long ago. Because I cannot follow the Court down any of these rabbit holes, I respectfully dissent.
Notes
Early American courts also declined to apply nonpenal statutes that were “unintelligible.” Johnson v. United States, 576 U. S. 591, n. 3 (2015) (THOMAS, J., concurring in judgment) (slip op., at 10, n. 3); e.g., ante, at 5-6, and n. 1 (opinion of GORSUCH, J.) (collecting cases). Like lenity, however, this practice reflected a principle of statutory construction that was much narrower than the modern constitutional vagueness doctrine. Unintelligible statutes were considered inoperative because they were impossible to apply to individual cases, not because they were unconstitutional for failing to provide “fair notice.” See Johnson, 576 U. S., at 610, n. 3 (opinion of THOMAS, J.) (slip op., at 10, n. 3).