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Neil Gorsuch and Clarence Thomas Clash Over Due Process and Immigration Law

The two justices face off in Sessions v. Dimaya.

Fred Schilling, Collection of the Supreme Court of the United StatesFred Schilling, Collection of the Supreme Court of the United StatesA significant constitutional split has emerged between Supreme Court Justices Neil Gorsuch and Clarence Thomas over the meaning of the Due Process Clause.

The division emerged in Tuesday's Supreme Court ruling in Sessions v. Dimaya, in which the Court struck down a provision of the Immigration and Nationalities Act for being unconstitutionally vague. Justice Gorsuch concurred in Justice Elena Kagan's 5-4 opinion invalidating the provision.

Writing in dissent, Justice Thomas questioned whether the Supreme Court had any busines voiding this or any other statute on vagueness grounds. "I continue to doubt that our practice of striking down statues as unconstitutionally vague is consistent with the original meaning of the Due Process Clause," Thomas declared. In his view, "the modern vagueness doctrine, which claims the judicial power to 'strike down' vague legislation on its face, did not emerge until the turn of the 20th century."

Justice Gorsuch took the opposite view in his concurrence. 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 our Constitution," he wrote.

For Gorsuch, the phrase "due process of law" should be read as imposing a key check on government overreach. "Vague laws invite arbitrary power," Gorsuch argued. "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. Today's vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving people in the dark about what the law demands and allowing prosecutors and courts to make it up."

One of the sharpest disagreements between Gorsuch and Thomas came over the question of whether the Due Process Clause, as originally understood, offers any protection for aliens facing deportation from U.S. soil by the federal government. Thomas seems to think that the clause offers no such protection. "Less than a decade after the ratification of the Bill of Rights," he observed in his Dimaya dissent, "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 Friends Act, [which] 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 itself."

Gorsuch responded directly to this point with a forceful dismissal. "But the Alien Friends Act—better known as the 'Alien' part of the Alien and Sedition Acts—is one of the most notorious laws in our country's history," he wrote. "It was understood as a temporary war measure, not one that the legislature would endorse in a time of tranquility. Yet even then it was widely condemned as unconstitutional by Madison and others…. With this fuller view, it seems doubtful the Act tells us a great deal about aliens' due process rights at the founding."

This is not the first time that Gorsuch has butted heads with another right-leaning justice. As I've previously reported, Gorsuch and Justice Samuel Alito have clashed repeatedly this term during oral arguments over questions of privacy and the Fourth Amendment.

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  • John||

    But the Alien Friends Act—better known as the 'Alien' part of the Alien and Sedition Acts—is one of the most notorious laws in our country's history," he wrote. "It was understood as a temporary war measure, not one that the legislature would endorse in a time of tranquility. Yet even then it was widely condemned as unconstitutional by Madison and others…. With this fuller view, it seems doubtful the Act tells us a great deal about aliens' due process rights at the founding."

    Maybe. But the condemnations I have read had to do with the sedition part, not the alien part.

  • Juice||

    The Alien part was never really enforced, IINM.

  • Libertymike||

    The Alien act was not rooted in any power that had been given to Congress. Once again, only dopehats would conflate the power to make uniform laws relating to naturalization with the power to create laws to empower the President to deport people.

    The Alien act also constituted an unconstitutional delegation of Congressional Power to the Executive branch. The congressional Federalists at the time were cucks to Adams.

  • buybuydandavis||

    The power to control borders is fundamental to any State and was specifically held to be so by the Supremes.

    I know it's confusing for anarchists, but you should probably learn about the concept of the State if you want to talk to the normies.

  • Libertymike||

    Aren't the normies interested in strict construction?

    Yes, I am an anarchist, but my point is premised upon the text of the constitution. Should not the text trump nativist hurt feelz?

  • Jay Dubya||

    well done mike

  • Scarecrow Repair & Chippering||

    Any law which makes the executive judge, jury, and executioner is unconstitutional. Unless these aliens were enemy soldiers, they have the same right to a jury trial as everyone else.

  • John||

    That has one you idiot. You have to have a conviction for this to apply. This is about if the conviction is grounds to automatically revoke your Resident status.

    It should be pointed out that this case was about the due process owed to LPRs. So it won't help the sacred illegals who are caught robbing someone or bashing someone in the head.

  • Scarecrow Repair & Chippering||

    Is that revocation listed under punishments? No?

    Do illegals still get due process and all that related hogwash for the robbery or assault? Why should they not get it for the deportation?

    Fuck off, slaver.

  • ||

    "Due Process" is one of the more squishy concepts in the entire Constitution. It's ripe for this kind of debate. Gorsuch's opinion is at least a fairer take on "Due Process" than the "Substantive" due process construction.

  • Tony||

    Justice Thomas is so cute with his rejection of centuries of legal tradition as if the founders were all-knowing deities who never got anything imprecise.

  • StackOfCoins||

    He's certainly more pro-government that Gorsuch. Either way he has ruled terribly in the past, especially in regard to giving federal authorities the right to fuck people, and I am happy to see someone like Gorsuch expressing skepticism.

  • u got review||

    Any law which makes the executive judge, jury, and executioner is unconstitutional. Unless these aliens were enemy soldiers, they have the same right to a jury trial as everyone else.
    https://bit.ly/2EU3mNm

  • The Last American Hero||

    Who cares if the founders were precise? Even when they were explicit, the courts just ignore them.

    "Shall make no law"

    "Shall not be infringed"

  • Just Say'n||

    You're a bigot, Tony. Just like all good progressives. If a minority doesn't think the way you insist they do you're the first ones with the racial insults. It's offensive how racist you progressives have been toward a man who grew up poor and his way to the highest court in the land. But, of course, you wouldn't understand work trust fund Tony

  • Libertymike||

    Thomas has been good on some things, like his support for the re-emergence of the Privileges or Immunities Clause. He has often criticized the Slaughterhouse cases. He deserves props for that.

    However, he's wrong on the application of due process here and Gorsuch is right.

    BTW, Tony would throw a bouquet to John before he would to Thomas.

  • buybuydandavis||

    "I hate it when a Supreme Court Justice actually upholds the Constitution."

  • Diane Reynolds (Paul.)||

    vague legislation on its face, did not emerge until the turn of the 20th century."

    The Framers couldn't have foreseen the turn of the 20th century.

  • John||

    I am okay with this decision. If we are going to start holding the government to this strict of vagueness standard for its laws, then a lot of laws are going to be struck down.

    The problem is that that is unlikely to happen. The liberal justices don't believe a word of what they wrote. It is just your typical results based (brown people good Trump bad) decision from them. So, when Gorsuch tries to apply this standard to another law, he won't have the liberal justices voting with him and is unlikely to convince the conservatives. So, it will end up being an 8-1 decision with him the lone dissenter.

  • ||

    There's always a way to rationalize even the stupidest law.

    Still, I'd rather have a vagueness hammer in my toolkit than not.

  • John||

    That is nice but so would liberals and they won't be using it in ways you like.

  • ||

    Vagueness is a limiting principle. It can only be used to nullify. I'm not seeing a downside.

  • WoodChipperBob||

    You guys seem to talking about different vagueness hammers. MP is definitely talking about the Justices having a vagueness hammer to strike down laws. But it looks like John is talking about liberals who aren't on the court using vagueness to hammer "bad people".

  • Ken Shultz||

    "The liberal justices don't believe a word of what they wrote. It is just your typical results based (brown people good Trump bad) decision from them."

    It does come across like the decision saying that the revised travel ban was unconstitutional, not because of anything in the text of the order--but because what Trump said in his campaign speeches was unconstitutional.

    Saying it's okay to deport immigrants convicted of violent felonies is too vague because the immigrant didn't realize that violence was grounds for deportation?!

    The simpler explanation really is that judges are human beings, and they're influenced by the society in which they live. They want to stick up for immigrants in any way they can, and I guess this is one way of doing that.

  • John||

    The simpler explanation is that they are unprincipled assholes who stick up for whatever group is fashionable. She how keen they are on sticking up for evangelicals or gun owners

  • Libertymike||

    John, although I agree with Gorsuch and the use of procedural due process, substantive due process, and the Privileges or Immunities clause (Thomas has supported the revival of the clause) generally to void statutory infringement of natural rights, there is no doubt that you are right that the progressive jurists would flip the middle finger to Gorsuch if it was one of a myriad of other issues in controversy.

  • buybuydandavis||

    "Saying it's okay to deport immigrants convicted of violent felonies is too vague because the immigrant didn't realize that violence was grounds for deportation?!"

    No. If you read an article by a *competent* journalist, they'll tell you that the issue of vagueness turned on characterizing a crime as including as "substantial risk" of violence, with the crime in this case being a conviction on burglary.

    Break into someone's house to steal things. Is there a "substantial" risk of violence? Yes.

    I think this ruling is total nitpicking, particularly in comparison to the vagueness of most any regulatory statute.

    How were they supposed to characterize "substantial risk of violence", with a probability range? To how many decimal places? Assuming what state of knowledge for the risk?

    I think reasonable reading of substantial is "not de minimus".

    I find the Left increasingly engaging in this kind of willful obtuseness increasingly these days, when it suits their rhetorical purposes.

  • Ken Shultz||

    My understanding was that Gorsuch's opinion said something about how due process requires that people have a clear idea that their behavior is likely to have certain consequences, and that was what I was alluding to when I said the the law was too vague because the immigrant might not realize that his criminal behavior might lead to deportation.

    I don't mean to change the subject, here, but I have other questions about the basis of Gorsuch's opinion that way, too.

    When someone perpetrates a burglary in this country, they have good reason to assume they'll be locked up in a cage for a period of time. Is it really presumptuous to assume they know that deportation might also be on the menu?

    I'm not speaking to this law, specifically, but just the assumption that the threat of deportation is vague if you're convicted of any felony. I've been in plenty of other countries, legally, and I always assumed that if I were convicted of a felony, I would probably be deported.

  • commentguy||

    The whole point is that the law shouldn't be vague. The penalties should be clearly listed. In Russia there used to be the crime of analogies, essentially things that people should have expected to be illegal - even if there wasn't actually a statute outlawing them.

    Here, there was a law saying that you can be deported for committing violent crimes - not just any crime. So, what counts as "violent"?

  • Ken Shultz||

    Again, you're using the term "vague" as a substitute for judicial discretion.

    What you seem to be asking for isn't clarity--it's mandatory minimums, which flies in the face of judges doing their jobs.

    Again, it seems like the rule book is being thrown out the window simply because we're talking about immigration. Judges making situational judgment calls is hardly arbitrary or new.

  • Diane Reynolds (Paul.)||

    I was wondering about this too... I thought vagueness of the law was the bread and butter of our modern federal government.

  • Ken Shultz||

    I've never been to law school, but I did take some business law classes, and when we got into case law, one of the things the professor would say all the time is, "This is the true in every state but Louisiana". I heard it over and over.

    When I asked, I was told that the reason is because Louisana's legal system follows the Napoleonic Code (which in turn was based on Roman law) rather than English common law. My understanding was that the difference between them had to do with common law's emphasis on case law.

    Where the Napoleonic Code doesn't really care what was decided in previous cases in the same way, English common law is a function of case law. English common law changes and it can be vague. Yeah, I know, we're talking about the laws of congress here rather than case law, but it was my understanding, too, that the kind of discretion the Court went after is integral to what makes our court system the way it is.

  • JoeJoetheIdiotCircusBoy||

    While I like the idea of using vagueness standards to strike down laws, I doubt this is where it is going to stop (i.e., with the law going away). Instead, lawyers will just try to create "more specific" laws that will just be more complex/specific and harder to understand (and apply to real life). Read Howard's "Death of Common Sense." The whole book is basically about how our idiotic and incomprehensible system of laws/regulations was created by lawyers who tried to specify the infinite ways human beings could possible act.

  • buybuydandavis||

    Vague laws are only going to go away when the Supremes don't like them. When they like them, they'll go nowhere.

  • Variant||

    Just look at ACA. The Supreme Court helped the clear up the vagueness to avoid needing to strike down the law.

  • Diane Reynolds (Paul.)||

    In 1798, the Fifth Congress enacted the…Alien Friends Act, [which] 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 itself."

    A Russian Oligarch is on the phone, he'd like to sell us some... *looks at scribbled notes* animated GIFs of Bernie Sanders riding a... *looks again at notes* unicorn, yeah, I think I wrote that down right, yes, a unicorn.

  • chemjeff radical individualist||

    Well, I don't know. I like that we now have fewer vague laws, but I don't know if this was the correct way to achieve this outcome. Maybe Clarence Thomas would respond to Gorsuch's criticism with "well, if the people want vague laws, then they should get them good and hard, and it's not the job of the courts to say otherwise".

  • John||

    Any law is vague if you want to be pedantic about it. So "void for vagueness" ends up being "the judge doesn't like it".

  • buybuydandavis||

    Bingo

    Clearly the case here
    The actual text of the law they were arguing over was more specific than most statutes

  • MSimon||

    It left out burglary.

  • Ken Shultz||

    "The founders cited the crown's abuse of 'pretended' crimes like this as one of their reasons for revolution. Today's vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving people in the dark about what the law demands and allowing prosecutors and courts to make it up."

    I'm a bit confused about the distinction between vagueness and judicial discretion.

    Libertarians have long argued against mandatory minimums, especially in reference to the drug war. Does all that respect for judicial discretion go out the window when we're talking about immigration?

    If so, why? Isn't it the same principle?

    If different circumstances, in fact, require different considerations in sentencing, how can we just ignore that fact and say everyone needs to know exactly what their sentence will be before they decide to commit a crime 'cause due process?

  • ||

    Not the same at all. Mandatory minimums are about discretionary punishment. It's the specifics of the offense itself that can't be vague.

  • Ken Shultz||

    We have degrees of murder based on premeditation.

    We have libel laws based on whether there was malice.

    I see violence as less of a judgement call than those considerations.

    P.S. If Gorsuch is concerned about abuse because of vague laws, maybe he should consider how the laws will likely look when they're clear and specific. They'll look like mandatory minimums.

    Congress is likely to fall all over themselves to make convicted felons of all kinds eligible for deportation. Take the violence requirement out--and there's no more vagueness, is there? Just, "You committed a felony. Goodbye!"

  • John||

    The solution to this is make any law that is punishable by more that a year in prison automatic grounds for deportation. Yes, making the law unbending and harsh solves the vagueness problem. Gorsuch was a fool here

  • Rev. Arthur Ꮮ. Kirkland||

    Actually, I'd suggest the correct solution is to amend the law to explicitly state that any crime that would strip a citizen of his right to keep and bear arms is automatic grounds for deportation.

  • BestUsedCarSales||

    What was the point of this comment?

  • BestUsedCarSales||

    That came off too sarcastic.

    I don't understand your point here, I can't quite tell if you're making a joke, or if this is a serious comment for some reason.

  • Rev. Arthur Ꮮ. Kirkland||

    So . . . you're suggesting my comment be ruled void for vagueness?

    I mean, it's got a perfectly straightforward interpretation:

    If a crime is sufficiently severe that it would not be excessive to permanently deny a citizen a right directly enshrined in the Bill of Rights, it would seem logical enough that it would also be severe enough it would not be excessive to deny a non-citizen the already-conditional privilege of being resident in the United States.

    And if a crime is sufficiently an indicator of potential violence that it justifies denying a citizen legal access to instruments of practical self-defense, it would seem logical enough that it would also be a sufficient indicator of potential violence that it would justify protecting the American people from a non-citizen by removing them from the country.

    One can argue whether the relative boundaries of good policy really cleave there, but it would pretty certainly be really hard for a court to articulate a principle of law that would distinguish. And it would ensure that challengers and courts would not be able to tolerate more vagueness in standards stripping citizens of the right to have guns than they tolerate in laws stripping non-citizens of conditional residency.

    if you're still confused, I suggest you check your premises.

  • BYODB||

    Yes but those examples you've pointed out aren't vague, they are specific offenses with specific considerations.

    I get what you're saying though, in that judicial discretion is sort of a vagueness all of it's own and I would tend to agree. It's not surprising that judges wouldn't want to kill the golden goose, though, and I've long wondered at a higher punishment for intent B over intent A when committing the same offense.

  • BestUsedCarSales||

    It's not surprising that judges wouldn't want to kill the golden goose, though, and I've long wondered at a higher punishment for intent B over intent A when committing the same offense.

    Yeah, me too. That one bothers me a lot too. I think I'm increasingly not a consequentialist, but this necessarily opens up weird issues regarding things like hate crimes.

  • Ken Shultz||

    Maybe look at it another way . . .

    If an immigrant contests deportation because his crime was insufficiently violent, why is it inappropriate for a judge to make that call at his own discretion?

    Judges decide between alternative sentences based on the specific circumstances of a case all the time--do they not? Isn't that an important part of being a judge?

  • ||

    I haven't read the decisions yet, but I suspect it comes down to the statute being insufficiently definitional. Almost all phrases within a statue have additional definitions in the statute that give weight to the phrase. "violent crime" is begging for such a definition. Without it, it's simply too broad/vague to be anything other than an open door for whatever one my decide to include. And that ends up substantially diminishing the rule of law (i.e. due process).

  • John||

    See Ken's point about minimum mandatory sentences above. What you call vague, is also room for mercy and use of discretion. You want clear laws, the price you will pay is unbending and harsh laws.

  • Agammamon||

    As an exame of this - merely havong a firearm on you while selling illegal drugs will trigger a violent crime sentencing enhancement.

    Don't have to commit violence, don't even have to display it.

  • Just Say'n||

    You're confusing libertarians with neoliberals. Go to the Libertarian Republic or Liberty for the libertarian perspective

  • Ken Shultz||

    As the liberals morphed into progressives and became increasingly authoritarian, I would have expected the left side of the old libertarian spectrum to slip into the space where honest liberals used to be.

    Except for two things:

    1) They're landing on the same side as the progressives on so many things--from immigration to association, etc. They're indistinguishable from progressives in all the ways that really matter.

    2) I'm reluctant to give a movement a new name--just for being wrong. Factually incorrect and wrong libertarians are not a movement with a coherent new philosophy that deserves a name. They're just wrong.

    In fact, I suspect some of the writers here aren't even self-identified libertarians. You can write about cars for a magazine and not be a car. You can write about libertarians for a magazine and not be a . . .

  • Just Say'n||

    I think the hard sellout on religious liberty (even the Reason Foundation's belated defense of the baker was based on free speech) should have been eye opening for many. The "left" version of libertarianism (which is really just repackaged Clintonian neoliberalism) is just controlled opposition. That's why Leftists don't shout them down or go after them, because they know that they'll bend the knee and sacrifice principle for acceptance. I'm sorry, but that's just true

  • Just Say'n||

    We are in desperate need of a legitimate libertarian publication ever since Liberty folded and went digital

  • chemjeff radical individualist||

    So what kind of libertarian, in your view, would be a "legitimate" libertarian, that wouldn't also just wind up being another Team Red tribalist "fighting the Left"?

  • Unlabelable MJGreen||

    The two hallmarks of a legitimate libertarian:

    1. Writes treatises owning the libs
    2. Is ineffective at everything, including owning the libs

  • Ken Shultz||

    The answer must have something to do with individuals being free to make choices for themselves, and, further, that if government has any legitimate purpose at all, it's to protect our right to make choices for ourselves.

    Anybody who thinks using the coercive power of government to force people to be free is a legitimately libertarian position is fooling themselves--even if their intentions are good. As I often say, being progressive is all about using the coercive power of government to force individuals to make sacrifices for the general good.

    So called "libertarians" aren't really libertarian at all if they want to use progressive means to achieve what they think of as libertarian goals. It's especially disturbing to see so many people embrace elitism in the name of libertarianism, as well. If elitism is wanting to impose your superior personal preferences on the rest of society over the objections of stupid people, then elitists can't possibly then turn around and claim that we should all be free to make choices for ourselves--not with any credibility.

  • Juice||

    They're landing on the same side as the progressives on so many things--from immigration to association, etc. They're indistinguishable from progressives in all the ways that really matter.

    Isn't immigration ultimately a matter of freedom of association?

  • Just Say'n||

    So they're hypocrites when it comes to freedom of association

  • Ken Shultz||

    "Isn't immigration ultimately a matter of freedom of association?"

    Free association means it's inappropriate to level criminal charges at people for hiring whomever they please--but just because I have the right to hire someone doesn't mean they have the right to be in the country.

    I may have the right to hire someone in prison serving a life sentence for murder, but just because I want to hire him doesn't mean the government is compelled to commute his sentence. Protecting our rights from criminals is one of the proper roles of government.

    Likewise, I have the right to choose to associate with whomever I please, but setting the rules of naturalization is a matter of enumerated powers--in Article I Section 8. It's within the proper purview of democracy just like declaring war. As an individual, no, you don't have the right to overrule congress on a declaration of war, and you don't get to overrule the rules of naturalization they set either.

    It isn't that way with rights. Congress is specifically prohibited from violating freedom of speech, freedom of religion, etc. Things that are within the proper purview of democracy (see Article I, Section 8), however, are obviously not like that.

  • Unlabelable MJGreen||

    Sure reads like Tony's argument regarding discriminatory business owners.

    Maybe you have the right to do X, but the government has the power to do Y, so if Y conflicts with X, too bad for your right. *shrug*

    Classical liberals would ask for some kind of substantive rather than procedural argument for government power Y.

    (we can ignore your, ahem, broad interpretation of "naturalization")

  • Ken Shultz||

    Democracy has its proper place.

    Rights exist regardless of whether they're popular in a democracy.

    Congress has no business legislating with respect to speech or religion.

    If something is properly within the realm of democracy, then it isn't a right.

    Just because I believe in rights doesn't mean I have to also believe that democracy has no proper place.

    Immigration is an enumerated power of congress because it's within the proper purview of democracy--just like the power to declare war.

    Imposing an unpopular immigration policy on the American people is like imposing an unpopular war--which is why those powers are both enumerated to congress.

    The First Amendment is a prohibition on congress. The power to set the rules of immigration is delegated to congress.

    I think I've said the same thing ten times now. Do you still not understand what I'm saying?

    Do you still imagine that me saying our rights are not subject to democracy is like Tony saying our rights only exist because our elected representatives say so?

    You have the right to associate with whomever you please.

    You do not have the right to declare war or set immigration policy.

    Why is this hard to understand?

    You're not one of these people who was arguing the other day that Trump's airstrikes on Syria were wrong because they were unconstitutional--and now wants to argue that the enumerated powers of congress don't matter when they apply to immigration, are you?

  • Unlabelable MJGreen||

    You can write about cars for a magazine and not be a car. You can write about libertarians for a magazine and not be a . . .

    Another ace analogy from Kenny S.

  • Unlabelable MJGreen||

    I see "neoliberal" has jumped the gap of the horseshoe.

  • EscherEnigma||

    You're confusing sentences with charges.

  • Ken Shultz||

    We've discussed this, but aren't they effectively saying that judges can't order an immigrant deported on the basis of having committed a sufficiently violent felony--because the wording of the law is vague?

    The question isn't whether the immigrant committed a violent felony. That's already been established by a jury. The question is whether the immigrant can be deported on the basis of having been convicted of a violent felony--given the supposedly vague wording (of "violent felony"?!).

  • Juice||

    Does a jury determine whether the crime in their case is violent? I thought they just determined whether the law was broken.

  • Ken Shultz||

    The point was that if the guilt or innocence isn't in question, then we're talking about sentences rather than charges.

  • commentguy||

    There's not really a conflict between vagueness and judicial discretion. It's inevitable that sentencing will entail a judgement call rather than a rigid mathematical formula, but judicial discretion is in itself constrained by statute. Vagueness has more to do with whether someone would even be aware that a law applied to them after reading it. (You're also comparing apples with oranges here: the SCOTUS dislikes vagueness and libertarians dislike mandatory minimums. There's no conflict at all between those two statements.)

    It is, however, notable that there is little consistency in when the vagueness rule is employed. To my mind, a lot of cases that reach the Supreme Court are quite clearly vague, insofar as lower courts have not reached an agreement.

  • Tony||

    It occurs to me that this illustrates another reason why the concept of "small government" is meaningless horseshit. Does that worldview not include frequent complaints about the number of pages that constitute our laws? Do you guys not often imply that more law equals less freedom?

    Yet being able to know whether an action is legal or illegal is of interest to anybody, and hence is part of due process jurisprudence. More specificity, meaning more detail in the law, increases people's freedom where vagueness would allow law enforcement to substitute its own judgment--not for the better on balance, I'm sure we'd agree.

  • Diane Reynolds (Paul.)||

    I'm trying to parse your comment (while trying to understand a request for "video conferencing") and what I come away with is a quality vs quantity issue.

    I think what libertarians complain about is a quantity issue, not a quality issue-- too many laws, many of which are vague. I don't think many libertarians would complain about a few, very precise laws with clear, bright lines. Shit, that's been my hobby horse for years.

  • Christophe||

    Sure, counting pages is a weak proxy for actual degree of government control. But that's only relevant if you assume that the main contribution to the growth of the federal register is the bureaucracies being ever more precise about the boundaries of their own powers. But even if that were the case, these definitions exist largely at their own discretion, so they're not effective speed-brakes when they want to ban genetic-testing-kits, online pilot boards, or political speech by corporations: They just rule-change in the other direction, and congress will essentially never stop them from doing so.

    The more effective limiters are clear boundaries set by congress when establishing the bureaucracy (which is something they tend not to do), and constitutional limits, in both cases because there's an adversarial process enforcing them.

  • Diane Reynolds (Paul.)||

    Sure, counting pages is a weak proxy for actual degree of government control

    Not necessarily. If I have 400,000 pages of vague rules, I can pretty much jam you any time I want.

  • Christophe||

    I mean it more in the sense that you could have a minarchist state where there's 400,000 pages of case law clarifying every corner case of what counts as "killing in self-defense".

    This is probably bad in many ways (that much hair splitting brings its own kind of vagueness), yet until you kill someone, you know you're not going to face jail time based on any of those 400,000 pages.

    Compare with old chinese imperial law which contained the following catch-all:

    Where the offense could not be fitted into any category in the code, the court felt free to find the defendant guilty of doing what ought not to be done or of violating an Imperial decree—not an actual decree but one that the Emperor would have made had the matter been brought to his attention.

    A few sentences that can be used to condemn just about anyone.

    In practice this distinction doesn't really matter: a random sampling of the Federal Code additions makes it pretty clear we're not dealing with the first case (moving exact legal cutoffs while staying inside simple bright lines), and rather with the slow creep of Leviathan.

  • Old Mexican - Mostly Harmless||

    Re: Tony,

    Do you guys not often imply that more law equals less freedom?


    But that's exactly what Gorsuch argued: that vague laws allow the government to exercise more and arbitrary power not less, over the individual, and vague laws imply more, not less, laws.

    Can't you read?

  • Hank Phillips||

    Tony and the religious conservatives agree that men with guns must coercively micromanage all trade and production. That much is clearly observable here, just as everywhere else they go to squabble in public.

  • Scarecrow Repair & Chippering||

    How can you be expected to obey a law if you don't understand it? Vagueness defeats that goal. Thomas is wrong.

    Far as I'm concerned, you can't demand too much clarity from laws. I would say that any split appeals court decision on what a law means is prima facie evidence of vagueness, and for that reason alone the law should be voided; how can ordinary folk be expected to understand a law when learned judges can't agree on its meaning?

    So should vastly different verdicts. If verdicts for similar crimes vary all over the map, then the law is too vague to understand or apply and should be voided. Congress, state legislators, everybody needs to get back to the basics and stop ceding authority to so many bureaucrats.

  • Diane Reynolds (Paul.)||

    I agree. And I think what John says above has some merit. I'd love to see the dissenting judges (including Thomas) hold the other 'liberal judges' feet to the fire the next time a vague statute comes under scrutiny.

  • Scarecrow Repair & Chippering||

    I would also make all decisions on clarity, vagueness, etc be tried by a truly random jury, and if they don't agree unanimously on what a law means, it is by definition too vague and confusing to be enforceable; void it, with no appeals.

  • Eidde||

    That would be a wonderful development.

  • Eidde||

    What I saw of Gorsuch's opinion seems to make good points - what's the point of requiring specific, detailed charges before someone can be sued civilly or prosecuted criminally - as required generally under the common law - if the legal basis of the charges can be as vague as the government wishes?

  • Eidde||

    And it's not as if they're deporting all felons, it's an ill-defined subcategory of felons. So the felon part is specific, it's the definition of crime of violence that is a tad vague.

  • CE||

    The Bill of Rights doesn't grant rights to American citizens. It prohibits the infringing of anyone's rights by the US federal government, citizen or not.

  • Old Mexican - Mostly Harmless||

    Don't tell Trumpistas. They discovered their inner positivist suddenly and ONLY when it comes to brown people from across the border.

  • Sidd Finch v2.01||

    Why is it always brown people trying to get into white countries and never the other way around?

  • buybuydandavis||

    An article about the vagueness of specific text of a law that neither refers to the terms or includes the specific text.

    Clown World

  • Ken Shultz||

    LOL

  • Sidd Finch v2.01||

    To be fair, zero people go to reason.com/blog for expert analysis.

  • Echospinner||

    Gorsuch got a lot of points from my perspective when I found out that he would start his law school lectures with the question "what is the answer to the ultimate question of life, the universe and everything?"

    Which as everyone knows is 42.

  • Eidde||

    4+2 = 6

    Put three sixes together...666!

  • MSimon||

    4 - 2 = 2
    2 * 2 = 4
    4 / 2 = 4 - 2

    Thus ==> Aleister Crowley

  • Mickey Rat||

    But 42 is also three sevens added together twice, and 777 is a perfect number associated with God.

  • Unlabelable MJGreen||

    I don't like giving legislation or legislators the benefit of the doubt. Gorsuch yourself, Clarence.

  • Just Say'n||

    Only unelected judges should be given the benefit of the doubt for reasons. Why not give bureaucrats the benefit of the doubt too then? Why even have a legislature then?

  • Tom Bombadil||

    " Sessions v. Dimaya"

    I read this as Sessions v. Dalmia and got a boner.
    Now what am I supposed to do?

  • Rev. Arthur Ꮮ. Kirkland||

    Well, i understand that immigrants are willing to do the jobs Americans won't, so hire a Mexican tranny?

  • TuIpa||

    Stop beating around the bush and tell him you're available.

  • MSimon||

    Stop eating the bush and tell him you're ava.

  • Just Say'n||

    Just so we're clear here, none of this has to do with "vague language". The same people saying that "violent felony" is too vague believe that Title VII of the 1964 CRA when referring to "sex" is also referring to "gender". This is about certain libertarians trying to impart their own version of judicial interpretation that is divorced from the actual letter of the law and empowers judges to further their agenda.

  • Unlabelable MJGreen||

    That's Gorsuch's belief, huh?

  • MSimon||

    Is so hard to say burglary when you mean burglary?

  • Unlabelable MJGreen||

    A true libertarian would be outraged at this limitation of government power. Of course we know where Damon and the neoliberals stand.

  • vek||

    Personally I'm of the opinion that foreigners SHOULD NOT have the full protection of the constitution. I think that's a load of BS personally. Obviously we should be civil and humane to a point, but why should some random asshole from half way across the planet be treated the same as a US citizen because they get one foot over our border? This gives people more rights here than in most of their home countries! We should be able to do with them as we like until they are full citizens, heeding only reasonable standards of decency, like not driving nails under their fingernails and such.

    Wrote this in the other thread:

    I don't like the specific outcome, not being able to kick out shitty people that immigrated here, but I don't like vague laws either. This one could certainly have been written better. I'd say they should just amend the law to be more clear, but keep it nice and harsh. Why do we want criminals of any sort here when we can boot them out?

    Imagine how low our crime rate would be if we could just ship every criminal off to Australia when they committed a crime. Most criminals are repeat offenders, so you ship them off, and you'll have a lot less crime. We can't do this with native born, but we sure as hell should with immigrants. There's nothing unreasonable about a long probationary period IMO.

  • Mickey Rat||

    I am trying to figure out why a reasonable resident alien would not think committing a burglary was grounds for deportation. I think perhaps tbe Court has got its head up its own nether regions here overparsing the language.

  • MSimon||

    Well of course. A reasonable standard by objective reason.

  • prediksi singapore||

    Jangan beri tahu Trumpistas. Mereka menemukan positivis batin mereka tiba-tiba dan HANYA ketika datang ke orang-orang coklat dari seberang perbatasan.

  • Hank Phillips||

    Hmmmm. So if alien agents provocateur are aiding and abetting allegations that temperatures have risen over the course of the past century (thermometers active during this interval deny this), then maybe Trump could expel them for "treasonable or secret machinations against the government itself." Ya think?

  • RodgerMitchell||

    The problem with Alito and Thomas is they fail to understand that fundamentally, the Constitution is about people. It is not some abstract list of laws designed to be followed into a harsh, blind chasm.

    As children, Alito and Thomas must have learned hatred, and their cold, hard arguments reflect that emotion.

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