What 2016 Gorsuch Opinions Could Mean for 2017 Re-Argument in Sessions v. Dimaya

by Michael Kagan — Monday, July 3, 2017@MichaelGKagan

At the end of its term, a shorthanded and evidently evenly divided Supreme Court scheduled two immigration cases for re-argument next term when nine justices can hear the cases. Of the two, Sessions v. Dimaya stands out because the ninth and newest justice has very recently issued opinions that seem to bear directly on key questions in the case.

Quick refresher on Dimaya

In its 2015 decision in Johnson v. United States, the Supreme Court held that part of the statutory definition of a “crime of violence” in the Armed Career Criminals Act (ACCA) was void for vagueness. In the context of the ACCA, a “crime of violence” enhanced a criminal sanction. Dimaya asks whether a very similar definition of an aggravated felony incorporated into the Immigration and Nationality Act is similarly unconstitutionally void. The Ninth Circuit concluded that it is. The Department of Justice argues (mainly) that a statute that is too vague for criminal law purposes can still be valid in context of setting out grounds of removal in immigration law.

I suspect the lawyers who fought this case to a draw in the Supreme Court this past term will be spending the summer focusing quite a lot on the Tenth Circuit’s August 2016 decision in Gutierrez-Brizuela v. Lynch. The key judge in that case was Neil Gorsuch. He has a new job, and now appears to hold Dimaya’s fate in his hands.

Then-Judge Neil Gorsuch wrote two opinions in Gutierrez-Brizuela: a unanimous judgment for the court, and a lone concurrence. The concurrence has received the most attention, because it presented a searing critique of Chevron and Brand X deference. It contains nuggets like this: “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.” Given that Chevron remains the leading canonical case in administrative law, Gorsuch’s concurring opinion would have been noteworthy even had it come from a Supreme Court justice. It was thus especially bold for a lower court judge, attracted national attention, and appears to have played a key role in getting its author a promotion.

The High Points of Gutierrez-Brizuela

From these two recent opinions, three key points in Judge Gorsuch’s thinking stand out because of their potential relevance in the Dimaya case:

First, the civil-criminal distinction did not matter. Judge Gorsuch noted that Chevron does not apply to criminal laws because the judicial role in saying what the law is especially sacrosanct in that context. He wrote about “the power our modern administrative state already enjoys … to penalize persons in ways that can destroy their livelihoods and intrude on their liberty even when exercising only purely civil powers.” He expressed, at length, considerable doubt about whether administrative agencies really behave differently from criminal prosecutors. He noted, approvingly it seems, the argument that some nominally civil statutes actually have implications for criminal law as well, and thus are not appropriate for Chevron. He then wrote, “Try as I might, I have a hard time identifying a principled reason why the same rationale doesn’t also apply to statutes with purely civil application.”

Second, reliance interests mattered in an immigration case. Gutierrez-Brizuela focused on whether the Board of Immigration Appeals (BIA) may apply a new rule retroactively, when that new rule effectively reversed a Court of Appeals interpretation of a statute under Brand X. But the Tenth Circuit decided that this new agency rule may only apply to future cases, and only after judicial approval. For the court, Gorsuch placed considerable emphasis on Mr. Gutierrez-Brizuela’s reliance on the old, judicially announced rule:

The due process concerns are obvious: when Mr. Gutierrez-Brizuela made his choice, he had no notice of the law the BIA now seeks to apply. And the equal protection problems are obvious too: if the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter.

The “choice” to which Judge Gorsuch referred was to stay in the United States and pursue an application for adjustment of status (which the older judicial rule permitted), rather than leave the country to begin a 10-year waiting period (as demanded by the newer BIA rule).

Third, separation of powers mattered. As the foundation for his critique on Chevron deference, Judge Gorsuch vigorously argued for maintaining a sacrosanct judicial role in saying what the law is (rather than deferring to executive branch interpretations). Judge Gorsuch expressed general concern about “transferring the job of saying what the law is from the judiciary to the executive.” He doubted whether Congress can delegate its legislative power to the executive branch. But, even if Congress can do this, Judge Gorsuch criticized the theory that when Congress enacts an ambiguous statute it is silently delegating. He feared a situation in which a single branch of government would acquire law-making, law-interpreting, and enforcement powers.

What Does This Mean for Dimaya?

Maybe something, maybe nothing.

Obviously, Justice Gorsuch is under no obligation to follow Judge Gorsuch’s opinions from his lower court days (even if it was just last year). Even assuming Justice Gorsuch holds the decisive vote in Dimaya, he still has to be part of a five-justice majority to carry the day. Another justice may write the opinion for that majority anyway. And it is not impossible for another justice to switch views, even slightly, allowing some kind of narrow decision that did not materialize previously. Nevertheless, in some manner Justice Gorsuch’s views are likely to have outsized impact, and Gutierrez-Brizuela appears to reveal a great deal of the new justice’s very recent thinking on some analogous questions. And, even if they are not predictive, the Gorsuch opinions in Gutierrez-Brizuela are intellectually provocative, and so it is interesting to think about how they might apply in a different case.

So, with these caveats noted, a few immediate potential applications of Gutierrez-Brizuela come to mind.

Perhaps the most obvious issue is the civil-criminal distinction. This is the lynchpin of the government’s argument in Dimaya. It’s the reason (according to the Solicitor General) that the void for vagueness doctrine should not apply as it did in Johnson. (It was Part A of the government’s brief.) The fact that Gorsuch has pointedly questioned the significance of the civil-criminal distinction seems to favor Mr. Dimaya. Most of all, the fact that Gorsuch appears to think civil measures in the immigration context carry risks of executive branch mischief similar to those posed by criminal sanctions could be a problem for the government in the Dimaya case.

Gorsuch’s evident sympathy for reliance interests in the immigration context also seems initially favorable to Mr. Dimaya. One of Dimaya’s arguments is that vague grounds of deportation are a problem because non-citizen criminal defendants need fair notice of the consequences of a conviction in order to decide whether to plead guilty (see p. 51 of Dimaya’s brief). Moreover, the definition of an aggravated felony in the INA has direct implications in criminal law (see p. 41 in Dimaya’s brief). In Gutierrez-Brizuela, Judge Gorsuch showed sympathy for this argument. (FWIW, Judge Gorsuch credited this argument to a dissent by the Sixth Circuit’s Judge Sutton, in the lower court decision in Esquivel-Quintana v. Sessions. The Supreme Court ultimately reversed the Sixth Circuit, but did not resolve whether Judge Sutton was right on the dual use statute issue with regard to Chevron.)

In short, there are some obvious ways in which the tea leaves in Gutierrez-Brizuela could be read favorably for Mr. Dimaya. Nevertheless, it is important to consider how different the context is in Dimaya. In Gutierrez-Brizuela, Judge Gorsuch was wrestling with whether to grant deference to an agency interpretation of a statute. Dimaya asks the court to invalidate a statute on constitutional grounds. That is a very different proposition.

Loud and Soft Anti-Chevron Approaches

In Gutierrez-Brizuela, Judge Gorsuch said interesting things about the civil-criminal distinction and about reliance. But these were building blocks in a bigger argument focused primarily on separation of powers, and especially about protecting the role of the courts. With a separation of powers focus, he used the case to launch a very loud attack on Chevron. If we put separation of powers concerns at the forefront in Dimaya, an alternative approach may be worth considering.

Perhaps the focus should be not on whether the “crime of violence” definition is too vague to be valid. Perhaps the focus should instead be on who gets to interpret such a vague provision. The Court could hold that the government is right in Dimaya, in that void for vagueness applies with much less force in the civil immigration context. The Court could easily say that it has already given an authoritative interpretation of the “crime of violence” ground for deportation, in its 2004 decision in Leocal v. Ashcroft. Perhaps this judicial interpretation gives enough fair notice to address the reliance concerns that Dimaya raises. This would be a victory for the government in the Dimaya case. But it would also maintain the trend toward a more assertive judicial role in immigration cases, by keeping judicial rather than administrative interpretations of the removal grounds at the forefront.

A soft anti-Chevron approach would be typical for the Court. The Court has frequently made no mention of Chevron in immigration cases concerning criminal grounds of removal. On the other hand, in the term just concluded, the Court referenced Chevron in a case concerning a criminal ground of removal, but then rendered Chevron irrelevant by concluding that the statute at issue was (allegedly) unambiguous. One way or the other, minimizing the actual impact of Chevron in cases interpreting criminal grounds of removal has been a pattern at the Supreme Court for awhile. We have good reason to think that Justice Gorsuch will not be unduly bothered by minimizing Chevron’s reach.

At a minimum, it will be interesting to see if and how the parties incorporate elements from it into the re-argument of the case, and if any traces of Gutierrez-Brizuela can be detected in the eventual Supreme Court decision. But, of course, Gutierrez-Brizuela may not matter at all in the end. For now, it’s just something interesting to watch.

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