Sessions v. Dimaya

Oral argument transcript · No. 15-1498 · October Term 2017 · argued January 17, 2017 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Edwin S. Kneedler, Deputy Solicitor General, appearance
• E. Joshua Rosenkranz, New York, New York, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 15-1498, Sessions versus Dimaya. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER, ESQ. ON BEHALF OF THE PETITIONER

Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: The Ninth Circuit erred in holding that this Court's decision in Johnson compelled the conclusion that the definition of crime of violence in the INA's broader definition of aggravated felony is unconstitutionally vague. That is so for two reasons. First, the standard for assessing vagueness in the immigration context is not the one that's applicable in criminal cases. Immigration removal is not a punishment for past conduct. It operates prospectively on the basis of the application of standards adopted by Congress under which an alien is regarded as no longer conducive to the safety and welfare. Official

Justice Ginsburg: But Mr. Kneedler, if you're -- if you're making the distinction that Johnson was a criminal case and this is a civil case, this Court has had a number of decisions saying that line is not so rigid. For example, MLB, taking away parental rights, is a civil proceeding. And yet the Court said, as in a criminal proceeding, for an indigent party, the state must give the transcript free. And so, if you had followed a rigid criminal/civil, then if it's civil, no free transcript. Only if it's criminal. But the Court said the -- the line is blurred when there is such a grave consequence. It was a grave consequence to be denied parental rights. It's a grave consequence to be removed from the United States.

Edwin S. Kneedler: And so our submission is not just the distinction between civil and criminal, although we think this Court's cases establish that there is -- that there is a difference. But the important points here, though, are immigration is distinctive. Immigration, this Court has repeatedly said, even though it may be regarded as a harsh Official 1 result or -- or can have a serious impact on a person's life, it is not punishment for a past offense. It operates prospectively because Congress has determined that the individual's presence in the United States is no longer conducive to the safety or welfare of the country.

Justice Sotomayor: Mr. Kneedler, does that permit arbitrary removal? Can the immigration officials walk down the street and say I just don't like the way you look; out?

Edwin S. Kneedler: No. And -- and this brings me to -­

Justice Sotomayor: But -- but let me get to that. So whether the distinction is criminal or civil, the issue for us, as I understand it under Johnson, is, is it arbitrary? Is it so arbitrary that under any standard, criminal or civil, this is vague? Now, I know you're saying it's not arbitrary for a bunch of different reasons. But please explain to me on the two grounds that Johnson used, ordinary case and type of risk, how this is not equally arbitrary.

Edwin S. Kneedler: There are a number of Official 1 -- a number of reasons why we -- why we think that's true. First of all, the Court said in Johnson it was the sum of the various attributes of the ACCA residual clause that created the problem. So whatever -- whatever might be the problem with -- with one of those, it was the combination of those. And those -­

Justice Sotomayor: Well, I thought it was only two. The other things it mentioned were -­

Edwin S. Kneedler: No, but, they -- they were -- they were critical attributes of the two. That's the -- that's the important point.

Justice Kagan: I mean -- I mean, what the Court said is -- I'm quoting -- "two features of the residual clause conspire to make it unconstitutionally vague." And then there's, you know, a clear holding sentence just a little bit later on in the opinion where it basically tells you exactly what two aspects it's talking about. It says, "by combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as Official 1 a violent felony. The residual clause produces more unpredictability and arbitrariness than the Due Process Clause authorized tolerates." So, you know, it says, Number 1, ordinary case analysis. Number 2, combined with a fairly fuzzy standard as to the threshold level of risk. And those were the two factors. And I guess the question is, are those two factors any different here?

Edwin S. Kneedler: Yes, they're -- they're very different here. And as this Court's decision in Leocal demonstrates, it relied on the -- on the features that we believe are -- critically distinguished 16(b) from the ACCA residual clause.

Justice Kagan: Here it's the fact that there's ordinary case analysis, both statutes, right?

Edwin S. Kneedler: No, but they -- but they operate in very different -- in very different ways. The -- ordinary cases is a way of saying that the elements don't have to match up like under 16(a). It doesn't have to be the Official 1 actual use of force. 16(b) addresses those situations in which the elements of the offense involve a substantial risk that physical force would be used even though it's not actually an element. So whereas under the ACCA residual clause, the ordinary case analysis was not -­ was not tied to the text of the -- of the relevant provision as it is here. There are three provisions in the -- in the ordinary case analysis that are here that weren't present there. You look to the nature of the offense, the offense by its nature. And this Court said in Leocal that means you look at the elements and the nature of the offense, involve a serious or substantial risk that physical force will be used, not that injury might result down the road but physical force, which this Court said is a -- is a focused inquiry and specifically distinguished the possibility that harm might result. And in footnote 7 of the Court's opinion, it specifically distinguished sentencing guideline that uses the very language of the ACCA residual clause and said Official 1 this is not open-ended like that. And then the -- 16(b) says the substantial risk has to arise in the course of the commission of the offense, which means it's tied both temporally to the -- to the actual conduct of the offense and functionally, does the substantial risk inhere in the elements of the offense.

Justice Sotomayor: So how do those two things change the definition of what an ordinary case is in burglary? The only time that I understand that burglars actually go into an occupied home is very little. It's probably less than 10 percent in which they confront someone, probably smaller amount when they actually use force against that person. Lots of burglaries are done with open doors or with jimmying without injuring a lock. How does any of those two things you've mentioned -- how do they change what constitutes an ordinary case for burglary and what the substantial risk of use of physical force or injury is?

Edwin S. Kneedler: Well, again, I think starting with the text of 16(b), you look at Official 1 the nature of the offense, the elements of the offense. Do they -- is inherent in those elements a risk, a substantial risk that force will be used? And -- and so looking at burglary, what is the nature of the offense with respect to the risk of harm -- or the, excuse me, the risk of the use of force? Well, this Court said in Leocal that the -- the nature of the offense there is that the burglar will encounter someone. If it's risk of force against a person, that the -­ that the offender will encounter someone while committing the offense -­

Justice Sotomayor: Justice Scalia did exactly that in Johnson and said the ordinary case and the risk of force or injury is something that you're leaving to the judge's intuition.

Edwin S. Kneedler: No, I mean, with respect, Justice Scalia's opinion in -- in Johnson or -- or in James, or whatever case you may be speaking of, was not about 16(b), and -­ and a unanimous decision of this Court written by Chief Justice Rehnquist identified burglary Official 1 as the classic example of what is covered by 16 --

Justice Sotomayor: Well, it wasn't part of the residual clause anyway.

Justice Gorsuch: Mr. Kneedler, may I -- may I ask you just a couple quick questions?

Edwin S. Kneedler: Sure.

Justice Gorsuch: I hope they're quick. First, getting back to the standard of review and the distinction between criminal and civil, this Court seems to have drawn that line based on the severity of the consequences that follow to the individual, but that seems to me a tough line here to draw because I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn't trade places in the world for someone who is deported -- deported from this country pursuant to a civil order or perhaps the subject of a civil forfeiture requirement and loses his home. So how sound is that line that we've drawn in the past, especially when the Official 1 civil/criminal divide itself is now a seven-part balancing test, not exclusive, so there may be more than seven factors as I understand it. And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property. It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right to self-incrimination, for example. So help me out with that.

Edwin S. Kneedler: Well, I -- the -- I think the analysis derives from the thinking about what the purpose of vagueness restrictions are, and as this Court has said in the criminal context, there are two basic points. One is that an individual, a person of common intelligence should know, have notice of what the law requires -­

Justice Gorsuch: Fair -- fair notice of the law.

Edwin S. Kneedler: Right. Official

Justice Gorsuch: And isn't it really important in the civil context, too, when we have so many civil laws today, and they're often hidden away in places like the Federal Register and other -- other fine reads like that?

Edwin S. Kneedler: Well, and the second point I was going to mention is, is whether it gives rise to the potential for arbitrary enforcement. And what's different about immigration, for example, from -- from the criminal law, for example, the notice -­

Justice Gorsuch: But you'd agree the fair notice point pertains to both the civil and the criminal sides?

Edwin S. Kneedler: It does, but I think in -- in -- in different respects, and in some ways, the two points I just mentioned -- or the two points the Court has emphasized are -- are related in -- in some ways. But with respect to the notice point the immigration context, this Court has held that the ex post facto clause, which is applicable in criminal proceedings, does not apply in immigration proceedings. Official 1 And, therefore, a person may be removed from the United States on a ground that was not a ground for removal at the time he engaged in the particular conduct. So the -- the idea that the -- that the statute for that reason has to have a notice element does not work. And then there is the concern about arbitrary enforcement. This is not, by the way, the sort of statute that regulates loitering or being annoying on the streets or something which is at the height of where I think the Court's concern has been about police and juries and judges being arbitrary in the application. The immigration laws have always been enforced through a broad delegation of authority to the executive branch, reflecting the fact that immigration and immigration enforcement are closely related to the national security and foreign relations of the United States.

Justice Ginsburg: Mr. Kneedler, does the government have another string in its bow here? I know we're arguing about 16(b) and its resemblance to ACCA, but you can be removed if Official 1 you commit a crime of moral turpitude, and wouldn't burglary fall under that?

Edwin S. Kneedler: Well, it -- it would depend on the -- the rules for what is a crime involving moral turpitude are somewhat intricate, depending on the nature of the offense. It's not -­

Justice Ginsburg: Well, hasn't it been determined whether burglary is a crime of moral turpitude?

Edwin S. Kneedler: But it -- again, it would depend on the nature of the offense. In this particular case, the immigration judge concluded that the conduct here involved a crime involving moral turpitude, but the IJ did not apply the categorical approach. It applied a fact-specific approach and concluded that the defendant's conduct in this case amounted to a crime involving moral turpitude.

Justice Alito: You think the concept of a crime of moral turpitude is less vague than 16(b)?

Edwin S. Kneedler: No, I -- I -- I think not, but -- but this -- this, I think, brings -­ brings to mind what's important about Official 1 immigration enforcement or, frankly, a lot of civil enforcement -­

Justice Sotomayor: But Kneedler -­ Mr. Kneedler, the crime of moral turpitude is always applied to the facts of the case. So Johnson pointed out that, when you have a statute that uses approximations like substantial or significant or severe, that what gives it life is its application to actual facts. The difference between these two approaches is that this one is asking judges to hypothesize the facts and has nothing to do with the reality of the crime.

Edwin S. Kneedler: Well, no, with respect, a crime involving moral turpitude, the categorical approach is applied there. It is not -- it is not a fact-specific determination.

Justice Kagan: But it is a different kind of categorical approach, isn't it? It's asking what the elements of the offense are that everybody has to commit, as opposed to what the elements of the offense are that people commit in the ordinary case, whatever that might be. Official 1 And that raises the question that Justice Scalia thought was so important in Johnson and elsewhere, where he says that there's no way really for a Court to do that, you know, this is the -- the line, should we look to a statistical analysis of the state report or a survey, expert evidence, Google, gut instinct, that this is the problem with ACCA's residual clause under Johnson as it is here, is that we don't really have a source of law to look to to tell what an ordinary case is in -- under either statute.

Edwin S. Kneedler: No, I -- I -- I really don't think that's correct. In Johnson, again, the Court was concerned about a statute that referred to the chance -- the chance that injury will occur which could be completely open-ended. Here, this is tied to the text of the statute, by its nature, does it give rise to the risk of force or -­

Justice Gorsuch: Mister -­

Justice Kagan: Before you get into that question, before you get into does it do this in terms of force, or does it do that in Official 1 terms of injury, before you do any of that, you have to have an understanding of what the ordinary case is. And the problem in Johnson with ACCA's residual clause, according to Justice Scalia and the Court, was that there was no way to tell what that ordinary case was.

Edwin S. Kneedler: Again, with respect, this Court, in Leocal, unanimously held that burglary is a classic example, and it gave the reason why, which I think is helpful for answering this question more generally. And the Court said that -- that burglary, by its nature, in the course of commission -- committing the offense, gives rise to a risk that physical force would be used during the offense because the person will encounter someone else. So built in inherent in the nature of burglary is the risk that the burglar will encounter someone while the crime is being committed.

Justice Gorsuch: Well, Mr. -- Mr. Kneedler, if I might interrupt, I'm sorry, but this raises a question for me about the nature Official 1 of our task here. It seems to me that one function of -- of our void-for-vagueness doctrine is not just to ensure fair notice, procedural due process -- I think you'd agree with that.

Edwin S. Kneedler: Yes, but the notice -­

Justice Gorsuch: Yes. Yeah.

Edwin S. Kneedler: With the caveat about immigration, we're -- right.

Justice Gorsuch: Of course not -- of course not in this case, right, but, generally, the doctrine serves that function.

Edwin S. Kneedler: Yes.

Justice Gorsuch: And it also serves a separation of powers function. When the law runs out and judges cannot say what the law is, they don't make it up. Right? And we stop. That's why we don't have a federal common law of crime, for example, right? And I wonder here how I would go about determining what the ordinary case is, the ordinary course of burglary in California, does it include fraudulently selling securities in someone's home, that's burglary in California, is that the ordinary case or not? Official 1 I would probably want to have statistics and evidentiary hearings and hear experts on that question. And that sounds to me a lot like what a legislative committee might do. And if I can't distinguish my job from a legislative committee's work, am I not verging on the separation of powers problem?

Edwin S. Kneedler: Well, at the margins or -- or at the outer limits, there may be problems like that. But I think it's important for the Court to focus on the core of what -­ this -- this, unlike the ACCA residual clause, has a core, what the Court -- another point we haven't discussed, what the Court was concerned about -­

Justice Gorsuch: Well, but could you answer my question?

Edwin S. Kneedler: Yeah. I was -- I was getting there. Now I -­

Justice Gorsuch: Great.

Edwin S. Kneedler: I apologize. But the -­ the -- if we look at the -- I think the Court can comfortably look and see whether the statute has a core of administrable offenses. If there are ones at the margin, for example, that would Official 1 give rise to the concern you're raising -­

Justice Gorsuch: Well, let's take burglary in California, what the ordinary -­ oh, and what level of generality am I supposed to look at in terms of what the ordinary case is? Municipality, Orange County, state, California, the country? Or do I make that legislative choice too? I'm just wondering -­

Edwin S. Kneedler: Well -­

Justice Gorsuch: Even take burglary in California, how am I supposed to know what ordinary is?

Edwin S. Kneedler: And California -­ California burglary would be a close question, frankly. Now, here, it was -- it was resident -- it was class 1 burglary.

Justice Gorsuch: If burglary is a close case, then doesn't that tell us -­

Edwin S. Kneedler: No, no. California burglary.

Justice Gorsuch: California burglary.

Edwin S. Kneedler: And only because -- only because California burglary does not require an unlawful entry -­ Official

Justice Gorsuch: Right.

Edwin S. Kneedler: -- or unlawful remaining, and therefore, it does not satisfy generic burglary, but -- but generic burglary, as this Court again unanimously held in -- in -­ in Leocal, is a classic example. And if I could use a couple of others, just to show that the Court is not at sea here, kidnapping is another one. Kidnapping may be accomplished -- it's typically accomplished maybe by the use of force, but can also be accomplished by trick. But that -- that doesn't mean that it's not covered by 16(b) because the entire time that the victim is being confined, whether or not he or she knows it initially that she's being confined against her will, once she finds out that she is, the risk of harm will materialize. It's a continuing offense -­

Justice Gorsuch: But -- but, Mr. Kneedler, I'm sorry, I just -- I just am stuck on my question. How am I supposed to determine what the ordinary case is? Should I bring in some experts and have an evidentiary hearing? Official 1 And if so, why -- why isn't that a legislative function?

Edwin S. Kneedler: Well, I -- there may be cases where the statute itself is not clear as to whether the elements give rise to the requisite risk. And -- and California burglary may be one of them.

Justice Gorsuch: So you would have me bring in experts?

Edwin S. Kneedler: No. I -­

Justice Gorsuch: You wouldn't -- you wouldn't -­

Edwin S. Kneedler: No, I'm not -­

Justice Gorsuch: Look, I'm just trying to get an answer on that.

Edwin S. Kneedler: No, no, I'm not saying -- I'm not saying experts, but -- but -- but where there are statistics available, for example, as -- as there were in several of -- of this Court's cases under the ACCA residual clause, that statistics were looked to to really reinforce common sense.

Justice Breyer: But do you remember -- probably you do or maybe not, that several judges, I remember because one of them Official 1 was me -- and some of the lower court judges said, why doesn't the sentencing commission or why doesn't that part of the Justice Department that keeps track of statistics go out and find out what is the typical way in which, for the ACCA provision, you know, the other provision, they're committed, and case after case went by, and nobody ever had the statistics. And I tended to think, well, they can't get them. Otherwise, they would. And so what's the story? I think it's a similar question to what is being asked.

Edwin S. Kneedler: Well, there -- there may be general categories of offenses where that -- where that could -­

Justice Breyer: Well, there were a lot -- in other words, we never had a case, that I can remember, under that other provision, where somebody came up with statistics, despite what I'd call pleading by a lot of -­

Edwin S. Kneedler: Well, there were -­ there were statistics in chambers -­

Justice Breyer: There were? Okay.

Edwin S. Kneedler: And then there were Official 1 statistics -­

Justice Breyer: Then there are some. Then there were some.

Edwin S. Kneedler: And there were some statistics and cites dealing with -- with vehicle -- flight from an -- from an officer -­ but I'm not -­

Justice Gorsuch: Law clerks are excellent at gathering statistics, but they're probably not as good as a legislative committee.

Edwin S. Kneedler: Yeah, no, but -- but -­ but I think it's important to recognize that what we have here is a legislative enactment in which Congress chose to identify the crimes that are covered by categories, the type of offense. And there -- and there is only so much that one can expect from a legislature in identifying a category. And here, Congress identified a category in 16(b) that is very closely tied to 16(a). 16(a) involves the situations where the element -- the element of the offense itself involves the use or threatened use of force. 16(b) expands that slightly to say, Official 1 okay, it may not be technically an element, but is the -- is the offense under 16(b) so instinct or inherent -- inherently contained, a risk of the use of force, that it -- that it should fall -- should fall in Congress's judgment in that same category? You look at other offenses, a number of lower courts have held that conspiracy to commit Hobbs Act robbery is a crime of violence. Robbery certainly is a crime of violence. Conspiracy itself contains the substantial risk of physical force being used because conspiracy is an agreement to commit the very crime that will -- that will result in physical force, conspiracy to commit -­

Justice Sotomayor: How about statutory rape?

Edwin S. Kneedler: Statutory -­

Justice Sotomayor: To start with, they know -- the courts below -­

Edwin S. Kneedler: Statutory -- sex -- sex -- sex offenses are difficult in any context. Sexual abuse of a minor, as -- as the Court knows from last year's case, but there is a Official 1 category of cases, and we cite some in -- in our brief where -- with a sufficient age difference between an adult and minor, the use of physical force is inherent in the nature of the offense, that when -- when the adult -- even if the -­ even if the adult is able to get the child to comply without actually using physical force, the threat or the potential for physical force is always present, if the child resists the -­ the adult can use force.

Justice Sotomayor: Is that the ordinary case? I thought that most of the pornography cases that we're seeing are children not being physically forced into sex but being tricked into it by caretakers or -­ or talked into it, et cetera?

Edwin S. Kneedler: But -- but -­

Justice Sotomayor: One may have personal views about whether an adult can ever not be using improper -­

Edwin S. Kneedler: But -- but -- but the point is, in that -- in that encounter, the potential for the use of force, the risk for the use of force is always -- the same -- the same risk. Official 1 And -- and whether or not force is used in 50 percent of the cases or 25 percent of the cases -­

Justice Sotomayor: So it doesn't surprise you -­

Edwin S. Kneedler: -- in that context is not the relevant -­

Justice Sotomayor: It doesn't surprise you that the courts below are split on this question, just the way they were under ACCA.

Edwin S. Kneedler: Well, the -- as we point out in our brief, the distinctions in the lower courts on this question and on a number of them have to do with the particular elements of the state offense. What -- particularly when it comes to sex offenses, it's difficult to -- to say statutory rape or sexual abuse of a minor because the elements of the state offense may vary, but if -­

Justice Gorsuch: Mr. Kneedler, if I may take you in a slightly different direction, some have criticized void-for-vagueness doctrine as a subspecies of substantive due Official 1 process, and they are legitimate on that score. Others suggest that it really is an element -- a form of procedural due process and also a product of our separation of powers, as we've discussed, to keep judges out of making new law. What's -- what's the government's position on that?

Edwin S. Kneedler: Well, I don't know that we've addressed it in precisely those terms.

Justice Gorsuch: That's why I'm asking you now. (Laughter.)

Edwin S. Kneedler: No, it -- it feels like more of a -- it seems like more of a substantive due process limitation, although it does -- it does -­

Justice Gorsuch: Why? Because the doctrine doesn't prohibit the Congress from legislating in any area. It just says you have to do it in a way that provides fair notice and that doesn't involve this body in law making.

Edwin S. Kneedler: Well, in that sense, I mean, I suppose it has a procedural aspect, but I -- but I think that, when you think about Official 1 notice, but I think substantively, it also -­ it also requires that Congress be -­

Justice Gorsuch: Congress could do -­ specify any crimes it wishes to include in this statute tomorrow.

Edwin S. Kneedler: Yes.

Justice Gorsuch: There's no substantive limitation.

Edwin S. Kneedler: Yes, it -- it could, but Congress chose to identify a category of crimes that it believed gave rise to a substantial risk, and we shouldn't expect the impossible from Congress when it wants to identify crimes by category. Like -­

Justice Gorsuch: Really? Even when it's going to put people in prison and deprive them of liberty and result in deportation, we shouldn't expect Congress to be able to specify those who are captured by its laws?

Edwin S. Kneedler: We -- we think this law reasonably captures the category that Congress thought -- whose conduct gave rise to a serious risk of -- of physical force being used. If I could refer -­

Justice Ginsburg: Mr. Kneedler, did I Official 1 get, correctly, your answer to the question about a crime of moral turpitude being an alternative that the government could have pursued? You say the immigration judge found that this was a crime.

Edwin S. Kneedler: But on grounds we think were not correct because the immigration judge did not apply the categorical approach, which has since been determined to be the right way to look at crime involving moral turpitude.

Chief Justice Roberts: Thank you, Mr. Kneedler. Mr. Rosenkranz? ORAL ARGUMENT OF E. JOSHUA ROSENKRANZ, ESQ., ON BEHALF OF THE RESPONDENT

E. Joshua Rosenkranz: Thank you, Mr. Chief Justice, and may it please the Court: Let me begin -- begin with Justice Gorsuch's central point. Justice Gorsuch is right. This is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground. Congress has written a statute that makes it impossible for ordinary citizens or for law enforcement or for immigration Official 1 officials to figure out what the law is, and Congress has delegated that function to them. It has done it with two features that this Court described as dooming the ACCA residual clause. First, the piece that most concerned the Court, the Court said was most important, hypothesizing this ordinary case of a crime and, second, then estimating the risk associated with that hypothesized version and whether that meets some vague standard. The government warned the Court in Johnson that section 16(b) was "equally susceptible to challenge." The government was right then, and the differences in statutory language that the government has since discovered do not change the outcome.

Justice Kennedy: Well, since discovered, but the statute here says "during the course of committing the offense." And that's quite different from the statute in Johnson.

E. Joshua Rosenkranz: Your Honor, it isn't quite different from the statute in Johnson. The statute in Johnson has the same limitation Official 1 in different language. Section 16(b) covers risks in the course of committing the crime, ACCA's residual clause covered "a crime that otherwise involves conduct." Both are referring back to the crime. But it really -- I -- I -- I'd like to address more concretely this "in the course of committing the crime" point because I can't tell you why the government is wrong without knowing what the government thinks those words mean. And the government keeps shifting back and forth between two versions of what "in the course of committing the crime" means. At points, the government says that it means in order to satisfy the elements of the crime. So it reads the sentence to mean you look for substantial risk that physical force may be used in order to satisfy the elements, but that's not how any Court was ever applying this provision. It's not how the government was telling the courts to apply this provision. The government back then and even now, Mr. Kneedler points to conspiracy and other inchoate offenses, those offenses are Official 1 completed. The elements are completed when you say, I want you to kill my wife, here is 100 bucks, they are completed with the utterance of those words. Nevertheless, you look after the utterance, at least the government urged the courts. But what about attempted burglary in James? As Johnson itself points out, or burglary -- Johnson itself points out burglary was a problem. Why? Precisely because, under the ordinary case approach, courts were required to look past the elements. Burglary is committed, the elements are completed the moment you cross the threshold. That's -- if that's the government's reading, then burglary would be out. What the court said in Johnson is that it's what happens after you cross the threshold that creates the risk. But that's -- so -- so then the government shifts to, okay, but no, no, it's while the crime is under way, that's what "in the course of committing the crime" means, but that's not a solution. That is exactly the problem that Johnson describes. Official 1 Its concern was that the ordinary case analysis was "detached from the statutory elements." And that -- that it leads courts to speculate about what happens after the statutory elements have all been satisfied, but while the crime is under way. That's just as imaginary. Now let's -- let's look at -­

Justice Alito: Suppose, Mr. Rosenkranz, suppose a state enacted a statute that says that no person may be licensed to teach preschool, if the person has satisfied the language, not by reference to 16(b), but the language that's included in -- in 16(b). Would that be unconstitutionally vague?

E. Joshua Rosenkranz: No, I -- I don't think it would be. If it's some state that is not incorporating by reference Congress's handiwork or saying, we're adopting this language because this is language Congress adopted, it wouldn't be, but -- and I see we're shifting now to the other piece of the case, which is whether -- which is the application of criminal standards -- for civil -­ Official

Justice Alito: Well, before I decide -- before I can determine whether this is unconstitutionally vague, I have to know what the standard is, so that's my question. If we apply the standard that -- that generally applies to civil statutes, would this be unconstitutionally vague?

E. Joshua Rosenkranz: The standard that applies -­

Justice Alito: I mean, we might do -­ we might do a wonderful job of pruning the United States Code if we said that every civil statute that is not written with the specificity that is required by criminal statute is unconstitutionally vague, we could boil that down a lot, but that's what I'm asking. Is that what you're arguing?

E. Joshua Rosenkranz: No, not at all, Your Honor. First, you're talking about a civil statute here that is very different from deportation. It's a licensing -­

Justice Alito: Yeah. I'm taking it step-by-step.

E. Joshua Rosenkranz: It -- right. It's a licensing statute. So there are three things Official 1 to say about how this criminal standard applies in the civil context. The first is to the premise of Your Honor's question, Jordan settles the question -- the answer to the question how you apply criminal to the deportation context, but this Court never has to decide whether to reaffirm Jordan -­

Justice Gorsuch: Let's -- let's say we don't think Jordan decided that issue.

E. Joshua Rosenkranz: Yes. So -- so two things to say before you even address Jordan, and then the third thing to say is that Jordan was right. So the first two things, apropos of Justice Alito's embedded assumption, Section 16(b) is a criminal statute that Congress elected to import wholesale into this statute. This Court has held that, if Congress does that, it must -- then courts must apply the same criminal vagueness standards to the statute -­

Justice Alito: That seems like -­

Justice Kennedy: Well, that's just a minor point that gets off the basic point of Official 1 Justice Alito, but it did not incorporate exactly this statute. The language is different. But we'll leave that.

E. Joshua Rosenkranz: Your Honor, no, no, I --

Justice Kennedy: A question is pending.

E. Joshua Rosenkranz: I'm sorry, Justice Kennedy. Congress literally said, in the INA, that the crime of the -- that the definition of crime of violence is the definition of Section 16(b), Section 16(b) being a criminal statute. It then added all sorts of bells and whistles of other ways to create an aggravated felony, but this Court, in A.B. Small, said, Here is what you do when you have a statute that has both criminal and civil applications -­

Justice Kennedy: Well, I -- I took us -- I took us away from Justice Alito's inquiry. He -- he wants to know the standard for determining vagueness in civil cases.

E. Joshua Rosenkranz: So the standard for determining vagueness in civil cases was laid out by this Court in Hoffman Estates, and the Official 1 answer is it depends on how serious the crime is. The -- the seriousness of the crime -­ excuse me, how serious the penalty is or how serious the consequence is. And -­

Justice Gorsuch: Exactly. And that's where I get stuck, right, because the consequences in many civil matters can be very grave, more so even than a lot of criminal penalties. Civil forfeiture, take a man's home, his entire livelihood, deport him. And I can think of lots of other examples that can be graver than any misdemeanor offense on the books today. And again, the line between civil and criminal depends upon a seven-part non-exclusive factor balancing test. So what am I supposed to do with that?

E. Joshua Rosenkranz: Well, Your Honor, I will answer the question, but let me preface it.

Justice Gorsuch: Great. (Laughter).

E. Joshua Rosenkranz: Let me just preface it by saying I've only mentioned one of the reasons that this Court doesn't have to figure out the answer to that question. And let me just -­ Official

Justice Gorsuch: All right. But let's answer the question first and then you can go on.

E. Joshua Rosenkranz: Okay. So I would go back to your point, Justice Gorsuch, that this Court has repeatedly rejected a sharp line between civil and criminal. The correct distinction is the one that this Court identified in Hoffman Estates, cases, whether civil or criminal, with severe consequences -­

Justice Gorsuch: How do I determine that?

E. Joshua Rosenkranz: Yes. So here is how you determine it. One thing -- and by the way, this Court has never had to answer that question since Hoffman Estates set this out, so it's not a question that arises very often. The way the Court answers the question here is -- is we know that criminal cases and First Amendment cases are on one side of the line. What else comes on that side of the line? If ever there was a consequence that was on a par with criminal cases, it is Official 1 banishment, exile, lifetime banishment, the Framers understood banishment to be equivalent to taking away that which makes life worth living, Madison talked about banishment as the quintessential penalty, he says it's difficult to imagine a doom to which the name cannot be applied. By the way, this is not new to this Court. It's not just Justice Ginsburg's example. In a case involving a criminal protection, that is a constitutional protection that -- that relates only to crimes, that is Padilla and the -- the Sixth Amendment, deportation already stands alone as the only civil consequence that triggers a constitutional protection on a par with the criminal protection. So you don't get to come into court and say my lawyer didn't get -- didn't tell me that I could forfeit my home.

Justice Sotomayor: I get that you don't want to answer the question. (Laughter.)

Justice Sotomayor: But I'm really -­ I'm very interested in the answer, which is Official 1 Justice Gorsuch is -- is asking how you -- where do you draw the line? So acceptable civil vagueness and non-acceptable civil vagueness?

E. Joshua Rosenkranz: Well, Your Honor -­

Justice Sotomayor: Or vagueness generally.

E. Joshua Rosenkranz: Hoffman Estates says that it varies. So what we're talking about is the line between the severest penalties and those penalties that are less severe. The answer is, if it is on a par with a criminal punishment such that someone would trade one for the other, this Court answered that question in Lee. In Lee, this Court said, as Justice Gorsuch said earlier today, most people would happily take a little bit extra time in prison in order to avoid the consequence of deportation.

Justice Alito: Well, my earlier question was about licensing. So suppose this language applies to license as an attorney, license as a physician. Taking that away from a person is pretty severe. Official

E. Joshua Rosenkranz: Yes, Your Honor, but -- but not as severe as lifetime banishment from this country, which is preceded by automatic and mandatory imprisonment.

Justice Alito: And when we start -­ aren't we going to get into this same kind of legislating and how -- how severe? Where is this line drawn?

E. Joshua Rosenkranz: Well, Your Honor, this is the line this Court drew in Hoffman Estates. I mean, that was decades ago.

Justice Gorsuch: What do you think about this line? Life, liberty, or property.

E. Joshua Rosenkranz: That's a great line.

Justice Gorsuch: It's right out of the text of the Due Process Clause itself.

E. Joshua Rosenkranz: Yes, that's a great line: Life, liberty, or property. And -- and particularly here we are talking about a liberty interest, a liberty interest that says you must leave, for some people, the only home that you've ever -- that you've ever had. You must leave your family. So that when someone is making the decision, am I going to plead guilty to a crime Official 1 that I've never -- that I didn't commit in return for time served, he needs to know -- by the way, in return for crime served so he can get back to his wife and kids -- he needs to know whether ICE is going to be standing out there depriving him of that liberty and deporting him from his wife and kids.

Justice Breyer: You think you could go back to Justice Kennedy's original question? If you don't recall it -­

E. Joshua Rosenkranz: I do.

Justice Breyer: -- what sticks in my mind, if I get it right, is let's look at the old ACCA -- the one we struck down in Johnson, and the difficult language was it involves conduct that presents a serious potential risk of physical injury to another. And then there were a lot of examples where, gee, it's awfully tough to figure out whether it does or does not fall within those words. Now let's look at this language. It involves a substantial risk that physical force against the person or property to another may be used in the course of committing the offense. Now, that would seem to be that if Official 1 the offense is conspiracy to commit burglary, the conspiracy is finished, over, done with, long before they get to the property. And so that wouldn't be too tough. But burglary, which takes place on the property, or conspiracy under the first statute which would lead to the burglary that takes place, well, that becomes tougher. Okay. Now let's look at our statute now. And give me some examples. I'm sure there are many. But I think it would be helpful where under this language, it seems, my God, what is the basic case? This is impossible.

E. Joshua Rosenkranz: I'll give you several.

Justice Breyer: Okay.

E. Joshua Rosenkranz: First, Sykes, vehicular flight. Okay. How do we -- the Court was -- was mired in controversy about how you figure out whether vehicular flight is going to give rise to the right sort of risk and how do you -- how did the Court do it? It was looking at the moments or the long time frame after the elements were satisfied. The moment you pull out, you are in vehicular Official 1 flight. So "in the course of" certainly doesn't help. And the distinction between physical force and physical injury doesn't help. And the distinction between property and personal injury doesn't help. You're still always imagining what is happening after you pull out? Okay, next one, residential trespass. It all depends upon, first, what do you imagine the ordinary case to be of residential trespass and then figure out how it plays out. Or car burglary, same exact problem. Or to take one example directly out of ACCA, extortion. It all depends upon the ordinary case analysis, which -- which goes back to Justice Sotomayor's question early on. The heart of this problem is this ordinary case approach, and none of the -- the statutory differences that the Government has pointed to help you figure out what the ordinary case is.

Justice Kagan: And, Mr. Rosenkranz, just to tie in this ordinary case problem with this phrase about "during the commission of Official 1 the crime," has the Government in all of this briefing and in all of this argument ever come up with a single crime in which the ordinary case of that crime, the injury would be occurring after the commission of the crime? If the commission of the crime is taken to mean not just elements but a more general view of what the crime is.

E. Joshua Rosenkranz: In this case, no.

Justice Kagan: I'm just suggesting that the Government has never come up with a single case under ACCA in which -- and, remember, ACCA requires you to look at the ordinary case. In the ordinary case, what crime has injury that occurs after the commission of the crime? The Government has not told us of any.

E. Joshua Rosenkranz: If you are -- that is correct, after the crime is over. I mean -­ CHIEF JUDGE ROBERTS: Poison?

E. Joshua Rosenkranz: -- conspiracy or solicitation to murder, the crime is done -- it occurs after. I think the Government's current position, contrary to what it persuaded multiple courts of appeals of, was that that's out. Official 1 And so that's the example, but in order to get there, the government has to take the quintessential crime of violence and say that it is not -­

Justice Kagan: And that's inconsistent with everything that the government has said in multiple cases; isn't that correct?

E. Joshua Rosenkranz: Yes, in -- in -- I mean, the courts of appeals that have said that those crimes are within the residual -­

Justice Breyer: They're saying right now, what about conspiracy? I mean, you can have conspiracy to commit burglary. It's over, once you conspire.

E. Joshua Rosenkranz: Right. Well, that's a -- so that's an example, but I think the government said that that's in.

Justice Kagan: That that's in.

E. Joshua Rosenkranz: Right. And so if, that's in, then this whole notion of in the course of committing the crime doesn't do any work.

Justice Kennedy: Could -- could the government -­

Justice Kagan: Similarly, the Official 1 government -- please.

Justice Kennedy: It's a different point. Could -- could the government pass a statute saying that aliens who commit criminal offenses are deportable if in the discretion of the Attorney General, the presence of the alien is inconsistent with the best interests of the people of the United States?

E. Joshua Rosenkranz: That is the basis of deportation? No.

Justice Kennedy: Why?

E. Joshua Rosenkranz: I'm sorry, let me -­ let me back up. If -­

Justice Kennedy: In other words, what standards must a statute meet before an administrative officer can make the determination that the -- remaining in the United States is not in the best interests of the United States?

E. Joshua Rosenkranz: Well -­

Justice Kennedy: Would that -- would that suffice? Would that be unconstitutional?

E. Joshua Rosenkranz: That would be unconstitutional -­

Justice Kennedy: Under what rule and Official 1 under what context?

E. Joshua Rosenkranz: Under the criminal void-for-vagueness rule. A reasonable person, whether it is the deportee or an official on the ground or an administrative law judge would have no idea what the content of that prescription is, as a basis for being within the universe of people who can -- who are identified as being deportable. Now, if it's a basis for the Attorney General's exercise of discretion that despite the fact that you are deportable as Congress has defined it, I am not going to deport you, that's another story. And by the way, that was the Mahler case.

Justice Gorsuch: Mr. Rosenkranz?

E. Joshua Rosenkranz: Yes.

Justice Gorsuch: What do you say to the critique that the void-for-vagueness doctrine, as an originalist issue matter, is just substantive due process and suspect on that basis and therefore should be narrowly construed?

E. Joshua Rosenkranz: Your Honor, it's not -- it's not substantive due process. It's a Official 1 procedural due process concern and it's a separation of powers concern. It's both of those. It is the procedural right on the part of the individual who's being accused or being deported to know what the law is in advance. And as Justice Thomas has explained very eloquently, it derives out of the rule of lenity. And it's also, as Your Honor was pointing out, a very important separation of powers set of principles because the law enforcement officer on the ground who gets to tell a non-LPR, you are an aggravated felon and you are out, with no opportunity for BIA review and very limited judicial -- opportunity for judicial review, that is a classic abdication of congressional authority to line level officers.

Justice Alito: How is it -- how is it procedural? I don't understand how you can say it's a procedural right. You said -- you said the statute is void for vagueness. That certainly is substantive.

E. Joshua Rosenkranz: Your Honor, you say the statute is void for vagueness because when Official 1 it is being applied to an individual, that individual is given no notice that lifetime banishment is going to be the consequence of what he thought to be a safe harbor -­

Justice Alito: And what if he was given notice in some other way?

E. Joshua Rosenkranz: I think it depends in what way. But this Court said in Johnson -- I mean, Johnson actually had notice. Johnson knew that the illegal -- that the sawed-off shotgun was illegal, but this Court struck the statute.

Justice Alito: So that makes my point. He had notice. He knew. So where's the procedural violation?

E. Joshua Rosenkranz: Well, for -- for the vast majority of people and the people who are affected by it, it is procedural. But, you know, Your Honor, I just realized, in this colloquy, I never did answer the other part of Your Honor's question, Justice Alito, about the reasons why the vagueness standard applies here, the criminal vagueness standard. So the first I said, before you ever Official 1 get to Jordan, is that the -- that 16(b) is itself a criminal statute. The second reason is, to the point that Justice Gorsuch was making about the relationship between -- between criminal law and immigration law, there is not an area of law where the two are as integrated, and 16(b), in particular, excuse me, the ACCA provision here, in particular, has very significant criminal consequences. The aggravated felon label, once you are an aggravated felon, now that's in the INA, certain immigration crimes are triggered. And so aggravated felon becomes a -- an element of a crime. And I'll give you an example. If -- if this -- if this vagueness analysis works the way the government says it works, Mr. Dimaya can be deported because he had sufficient notice or the statute was sufficiently clear, but an aggravated felon who reenters this country is prosecuted as an aggregated felon. So, if he reentered the country, he can then be not -- he then -- he can then not be prosecuted as an aggravated felon because the Official 1 statute would be too vague. That makes no sense, which is exactly why this Court adopted the rule that it adopted in A.B. Small and that four members of this Court repeated in Northwestern Bell, which is, if Congress makes that choice to give civil and criminal ramifications to the same statute, the very same statute, if the statute is void for vague in one context, it's void for vague in the other. And, by the way, that other context in A.B. Small was a silly little contract case, not, you know, even, you know, the licensing of a nursery.

Justice Ginsburg: Mr. Rosenkranz, can I ask you a simple question? If -- if, as this Court has held crime of moral turpitude isn't unconstitutionally vague, why should 16(b) fail to meet the vagueness test?

E. Joshua Rosenkranz: Your Honor, the answer is crime involving moral turpitude does not sit in a vacuum by itself. It is a phrase that Congress adopted that has, at this point, probably two centuries' worth of law describing what is in and what is out. Official 1 And, by the way, so what did the Court do in Jordan? What the Court did in Jordan was to say, You, Jordan, you committed a fraud. One thing that has been clear, since as long as those words have been used, is that a fraud is a classic crime involving moral turpitude. That's why he lost that case. And if he had been criminally prosecuted under a statute that made an element of the crime that it become -- that it be a crime involving moral turpitude, the same result would obtain. And -- and so -­

Justice Alito: I mean, maybe you have in your head a list of -- you could categorize any offense that I might mention and say that's a crime of moral turpitude, that's not a crime of moral turpitude. I couldn't do that.

E. Joshua Rosenkranz: Well -­

Justice Alito: And I doubt that somebody who's facing possible removal consequences would be able to answer that question.

E. Joshua Rosenkranz: Well, Your Honor -­

Justice Alito: Okay. Shooting a bald eagle, is that -- is that a crime of moral Official 1 turpitude? Some people would think so.

E. Joshua Rosenkranz: It is -- it is not.

Justice Alito: It is not. How about -­

E. Joshua Rosenkranz: And, by the way, nor is flag burning. And -- but let me -- but let me answer the question this way. You don't have to know, but you -- you have to be able to go to someplace like a lawyer who can tell you what the answer is. And where does a lawyer go? There are 14 pages of -- of Kurzban, where every single possible crime is categorized as in or out based upon decades of -- of judicial and other interpretations. That's how one knows.

Justice Kagan: And -- and in a crime of moral turpitude, we don't have to consider what the ordinary case is, do we?

E. Joshua Rosenkranz: I think that is what the Court -- no, not the ordinary case, that is for sure.

Justice Kagan: We don't.

E. Joshua Rosenkranz: Yes. That is correct.

Justice Kagan: All we do is look to the elements that everybody has to meet. Official

E. Joshua Rosenkranz: Correct, correct. So let me close with this. I -- I appreciate the instinct to try and see if this Court can do better with Section 16(b) than it did with ACCA's residual clause, but in deciding whether to take that route, this Court has to decide whether anything is to be gained by this whole enterprise of sending the lower courts back to apply now a different standard and figure out how it applies to all of these crimes, that process is going to be no less arbitrary, no less speculative, and lifetime banishment should not hang on the unpredictable answer to the question, Is this crime in or is it out? Congress can, of course, decide the circumstances under which lifetime residents can be kicked out of this country, but it disserves the separation of powers, that Justice Gorsuch referred to, to allow Congress to pass the buck to immigration officials and courts with a provision this vague. If there are no further questions, we respectfully request that the Court affirm the Court of Appeals. Thank you, Your Honor. Official

Chief Justice Roberts: Thank you, counsel. Mr. Kneedler, three minutes. REBUTTAL ARGUMENT OF EDWIN S. KNEEDLER, ESQ., ON BEHALF OF THE PETITIONER

Edwin S. Kneedler: Yes, there are several points I would like to make. First of all, with respect to conspiracy and some of the other crimes that have been mentioned, this is a critical point to understand. Those crimes are continuing crimes. Conspiracy is -- conspiracy, you could be prosecuted for conspiracy from the moment of the agreement, but the conspiracy continues up until the commission of the crime. The commission of the crime is the culmination of the conspiracy. The same thing with burglary, burglary is not over when you enter the house. It -­ it's over when you leave the house. Kidnapping is not over until the victim is freed. Escape from a prison is a continuing offense. And 16(b) and its counterpart in 924(c) serve a critical role in circumstances Official 1 like that, where a crime extends over a period of time, you can complete the crime without violence being an element, but there's -- it is instinct with risk of crime, and that is why -- or, excuse me, force, and that is why Congress addressed it, and that is what this Court unanimously focused upon in Leocal. This -- 16(b) has been on the books for 30 years and has not generated any -­ anything like the sort of confusion that ACCA's residual clause did. And this Court, we submit, should pause greatly before extracting from the U.S. Code a statute that has so many applications. In the immigration context, this statute is applied all the time through the mediation of an administrative body. It's not like a regular civil law in that respect.

Justice Sotomayor: In how many of those cases is it the sole basis of deportation?

Edwin S. Kneedler: Well, it can be -- I don't know the percentage, but it's also a basis for denial of discretionary relief. Also in deciding what -- what falls in Official 1 this category, statistics are not the -- the major thing. There are plenty of things to look at, the body of judicial decisions construing the very provision, the background of the legal traditional, which is what this Court drew on in -- in Leocal, in saying that burglary is a classic example, it's a classic example for the reasons that I just gave. You can look at the legislative judgments embodied in the crime, is the -- is the circumstance when force is not used, does it -- is it like the situations where the elements are -- are present? You asked for an example, I think, of a -- of a crime that would be in under ACCA and out here. Possession of a weapon is one because possession -- inherent in the possession is not the use. There has to be a subsequent act in the use of a weapon. So that's -- that's out here because it's not in the course of committing the crime of possession. We said it was in, in ACCA, because it is -- injury might flow, and it was actually a pretty good illustration of the difference between the two circumstances. Official 1 And, finally, with respect to immigration, I think it's important for the Court to understand that immigration provisions and grounds for deportation are often written in very broad and general terms and given content by the executive branch in which Congress has -- has vested authority. Crimes involving moral turpitude -­

Justice Gorsuch: You're not asking the executive -- for the executive to define these crimes. You're asking us to do it, right?

Edwin S. Kneedler: Well, in the immigration context -­

Justice Gorsuch: This isn't an example where Congress has delegated authority to the executive to do this. Are you asking -- are you suggesting it's delegated to this branch to do it?

Edwin S. Kneedler: No, it's not delegated to this branch. This branch has to construe the -- the statute that Congress has enacted. In other circumstances, the agency, of course, gets deference in deciding what constitutes a -­ a particular removable offense.

Chief Justice Roberts: Thank you, Official 1 counsel. The case is submitted. (Whereupon, 12:08 p.m. the case was submitted.)