Sessions v Dimaya

The government sought review of the 9th Circuit decision that the crime of violence residual clause in 18 USC 16(b) is unconstitutionally vague and thus cannot form the basis for deportation based on committing an aggravated felony. Resolving a circuit split, the Court, 5 (a four justice plurality joined in part by Gorsuch who concurred in part an in judgment)-4, affirmed. Kagan, joined by Ginsberg, Breyer and Sotomayor, argued vagueness doctrine applies here because deportation is such a severe consequence. Gorsuch argued vagueness doctrine applied as due process historically requires fair notice of the law’s requirements whether civil or criminal, and further severs the interest of the separation of powers by keeping legislative power in Congress’ hands and out of judicial hands. The five justices held that the reasoning of the Court’s Johnson decision holding the residual clause of the armed career criminal statute unconstitutionally vague applied here as 16(b) does not provide a reasoned basis to identify the ordinary violation of  criminal statute and fails to provide a reasoned basis to separate violent crimes form nonviolent ones. The plurality argued that Justice Tomas’ approach was not tenable as it would create different meanings of 16(b) depending on whether the statute is applied in a criminal or immigration context and cause constitutional issues about judicial fact-finding leading to increased penalties and in any event argued the pluralities’ reading requiring a categorical approach is the best one. All five justices held Robert’s approach relies on distinctions which do not matter as the phrase “in the course of committing the offense” gives no reasoned basis to identify which crimes are covered and as factual mater lower courts are divided over what crimes satisfy 16(b) and thus experience has not provided a settled rule either. Gorsuch argued the decision here is narrow, based in large part on the government’s concession that 16(b) controls the outcome and declared himself open to new arguments about the issue if made in future case. Roberts, joined by Kennedy, Thomas and Alito dissented arguing that Court precedent holds 16(b) applies when  the nature of the offense involves use physical force in its ordinary violation, Johnson does not apply here as 16(b) only looks at the risk involved in the crime not some caparison across crimes, requires the use force be against another person and is limited to the time the office is actually occurring and 16(b) is not tethered to set of offenses as the career criminal statue was and sues the term substantial to define the level of risk which is term courts have a long history of applying. Thomas dissented arguing that vagueness doctrine is not part of eth original understanding of the Constitution, does not apply in any event to immigration cases, 16(b) does not delegate legislative power to either the executive or the judiciary, argued (joined by Kennedy and Alito)  that Dimaya did not have standing to pursue a vagueness as first degree burglary is comfortably within the bounds of 16(b) as burglary has been unanimously held to be a crime of violence by lower courts and argued alone that any fool  would know burglary is covered by 16(b), and argued (joined by Kennedy and Alito) that the categorical approach was adopted to avoid constitutional issues and argued the approach should be abandoned as to 16(b) in favor of a fact specific examination of  crime actually committed.

Wilson v Sellers

Wilson sought review of the 11th Circuit decision denying habeas relief arguing the court should have looked through the Georgia Supreme Court summary affirmance of his state habeas petition instead of search the record for possible grounds the Georgia court could have relied upon. Resolving a circuit split, the Court reversed and remanded 6-3. The majority held that Court precedent allows a presumption that summary affirmances based on procedural rules can be looked through, the same presumption should apply here as it is realistic and often more efficient, acknowledged the presumption is not always accurate and held the presumption can be rebutted withy evidence of a convincing alternate ground or a ground obvious on the record and held the fact the court does not look through federal appellate summary decision is irrelevant and held the look though procedure is respectful of state courts. Gorsuch, joined by Thomas and Alito, dissented arguing ADEPA does not have the look through presumption, appellate court summary affirmances do not adopt the lower court reasoning in federal appellate practice and the same rule should apply here, the Georgia Supreme court recently stated summary affirmance does not adopt the reasoning of the lower court and never has, the precedent relied upon by the majority only holds adequate and independent state grounds are presumed to be adopted by higher courts and in any event predated ADEPA and in the end the rebuttal portion of the majority opinion will likely swallow up the rule making the decision practically meaningless for habeas petitioners.