From Cal.App.3d, Reporter Series. The government relies on Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., in which the court stated that it has shown “greater tolerance of enactments with civil rather than criminal penalties.” The solicitor general bolsters that argument by claiming, in language echoing the court’s plenary-power decisions, that vagueness challenges to the immigration laws are especially inappropriate: “[T]he Executive Branch possesses broad authority in the administration of the immigration laws because of their foreign relations and national security implications.” He further argues that, even if subject to a vagueness challenge, Section 16(b) satisfies due process. It's still very much on the books. 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? That means the government generally may not deprive a person of those rights without affording him the benefit of (at least) those "customary procedures to which freemen were entitled by the old law of England." Blackstone illustrated the point with a case involving a statute that made "stealing sheep, or other cattle" a felony. III, §2. 1961) (J. Madison). I believe our colleague's challenge is a serious and thoughtful one that merits careful attention. 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. 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. Art. An own goal in my mind. Without an assurance that the laws supply fair notice, so much else of the Constitution risks becoming only a "parchment barrie[r]" against arbitrary power.
What degree of imprecision should this Court tolerate in a statute before declaring it unconstitutionally vague? From Prof. Volokh’s initial language, it looks like the legislature envisioned the determination to be a bright-line rule for each statutory felony as to whether it is violent/not violent, which would then apply to anyone convicted under those crimes. And a writ risked being held defective if it didn't provide fair notice. Comments do not represent the views of Reason.com or Reason Foundation. What does “transportation” mean here? To do so, the Court should apply the modern criminal vagueness analysis here, extending that analysis to immigration statutes resulting in deportation, and strike the indeterminate residual clause. 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. The implacable fact is that this isn't your everyday ambiguous statute. It means being sent to a penal colony outside of England. A lawful permanent resident, James Garcia Dimaya lawfully immigrated to the United States from the Philippines in 1992. > 160, Sessions v. Dimaya: Vagueness Doctrine & Deportation Statutes, Constitutional Law | Supreme Court of the United States. A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal. I begin with a foundational question. (2017), Constitutional Law Commons, Eric Boehm | From the November 2020 issue. Admittedly, some have suggested that the Due Process Clause does less work than this, allowing the government to deprive people of their liberty through whatever procedures (or lack of them) the government's current laws may tolerate. Many of the Constitution's other provisions presuppose and depend on the existence of reasonably clear laws. It remains free, as well, to write a new residual clause that affords the fair notice lacking here. Assn. [Examples omitted.-EV] …. Hat tip to John Elwood, who I think coined the "Crossover Sensation, Justice __" line (originally, said about Justice Breyer). Is that a reference to covert agents of a foreign power aiming harm at Americans, to people seeking to arrange a better life by becoming Americans, or something else? Mostly law professors | Sometimes contrarian | Often libertarian | Always independent, Eugene Volokh |The Volokh Conspiracy | 4.17.2018 10:21 AM, Today's Supreme Court decision in Sessions v. Dimaya had to decide whether a particular deportation statute was vague: That statute generally provided that even a lawful permanent resident alien must be deported if he committed various crimes, some of which were specifically listed and some of which were covered by a catchall "crime of violence" category—defined as "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.".
What degree of imprecision should this Court tolerate in a statute before declaring it unconstitutionally vague? From Prof. Volokh’s initial language, it looks like the legislature envisioned the determination to be a bright-line rule for each statutory felony as to whether it is violent/not violent, which would then apply to anyone convicted under those crimes. And a writ risked being held defective if it didn't provide fair notice. Comments do not represent the views of Reason.com or Reason Foundation. What does “transportation” mean here? To do so, the Court should apply the modern criminal vagueness analysis here, extending that analysis to immigration statutes resulting in deportation, and strike the indeterminate residual clause. 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. The implacable fact is that this isn't your everyday ambiguous statute. It means being sent to a penal colony outside of England. A lawful permanent resident, James Garcia Dimaya lawfully immigrated to the United States from the Philippines in 1992. > 160, Sessions v. Dimaya: Vagueness Doctrine & Deportation Statutes, Constitutional Law | Supreme Court of the United States. A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal. I begin with a foundational question. (2017), Constitutional Law Commons, Eric Boehm | From the November 2020 issue. Admittedly, some have suggested that the Due Process Clause does less work than this, allowing the government to deprive people of their liberty through whatever procedures (or lack of them) the government's current laws may tolerate. Many of the Constitution's other provisions presuppose and depend on the existence of reasonably clear laws. It remains free, as well, to write a new residual clause that affords the fair notice lacking here. Assn. [Examples omitted.-EV] …. Hat tip to John Elwood, who I think coined the "Crossover Sensation, Justice __" line (originally, said about Justice Breyer). Is that a reference to covert agents of a foreign power aiming harm at Americans, to people seeking to arrange a better life by becoming Americans, or something else? Mostly law professors | Sometimes contrarian | Often libertarian | Always independent, Eugene Volokh |The Volokh Conspiracy | 4.17.2018 10:21 AM, Today's Supreme Court decision in Sessions v. Dimaya had to decide whether a particular deportation statute was vague: That statute generally provided that even a lawful permanent resident alien must be deported if he committed various crimes, some of which were specifically listed and some of which were covered by a catchall "crime of violence" category—defined as "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.".