By Quin Hillyer at National Review Online;

ome conservative analysts are unwisely praising Supreme Court Justice Neil Gorsuch for joining the court’s four committed liberals to keep a felonious immigrant from deportation.

These estimable analysts, including columnist George Will and the Wall Street Journaleditorial board, give too much credit to Gorsuch’s elegant concurring opinion, but far too little credit to the powerful dissenting opinions by Justice Clarence Thomas and the other three conservative (or sometime-conservative) justices.

The rulings by Gorsuch and the liberals could let the high court snatch too much authority, with too little justification, to invalidate too many laws or portions of laws duly passed by Congress and the president. They involve a misapplication of a 2015 precedent that itself was of dubious merit. And in the name of legal clarity, they could throw much of the U.S. Criminal Code into confusion.

In the Sessions v. Dimaya case decided last week, the liberals and Gorsuch applied a somewhat controversial doctrine known as “void for vagueness,” meaning that laws not clear enough to be predictably applied should be declared constitutionally invalid.

Dimaya involved a federal law permitting the government to deport any legal immigrant convicted of a “crime of violence” — partly defined in the criminal code 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.”

The problem, said the court majority, is that the two convictions of the (otherwise legal) immigrant in question were for first-degree burglary under California law, which at its limits can apply “to everyone from armed home intruders to door-to-door salesmen peddling shady products.” That, they said with some logic, is too vague.

Answering this, Chief Justice John Roberts noted court precedent: “Courts should exclude those atypical cases in assessing whether the offense qualifies.” In other words, just because a door-to-door salesman might be convicted of first-degree burglary (an “atypical case”) doesn’t mean that a judge will ordinarily be confused about whether most first-degree burglaries in California amount to acts that involve a substantial risk of physical force….

[The rest, including discussion of Clarence Thomas’ powerful reasoning, is at this link.]


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