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tv   Supreme Court Oral Argument Sessions v. Dimaya  CSPAN  October 18, 2017 3:23am-4:25am EDT

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>> sunday night on q and a, executive director of paralyzed vet answer of america and retired u.s. marine corps officer talks about his own paralysis and his work to help paralyzed vet's. >> i'm trying to tell them this is the problem. this is what i see from a patient's perspective, from a policy perspective, from an add voes cats perspective. you have to empathize. that's what will make it the va the ideal provider for veterans who have gone to combat and sacrificed. >> sunday night at 8 eastern on c-span's q and a. was reargued before the u.s. supreme court this month. the court is looking at a 2010 homeland security decision to deport a convictedburg lar or a crimes of violence statute even the plaers did not involve violence. the court will decide whether the statute under the
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immigration and nationality act for deportation proceedings is unconstitution ali vague. >> we'll here argument next in case 151498, sessions verse did he myo. mr. need her. >> 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 or violence in the ina's broader definition of aggravated felony is unconstitutionalel 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 --
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>> if you're making a 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, mlv. 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 filed a rigid criminal civil, then if it's civil, no free transcript. only if it's criminal. but the court said the line is blurred when there is such a grave consequence. it was a grave consequence to be denied parental rights. it's a consequence to be removed from the united states. >> our submission is not just the distinction between civil and criminal, although we think
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this court's cases establish 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 result or can have a serious impact on the person's life, it is not punishment for past offense. it operates prospectively because congress has determined that the individual's presence in the united states is no longer conducive to the state of the or welfare -- >> mr. need her, does that permit arbitrary removal? can the immigration officials walk down the street and say dash i just don't like the way you look, out. >> no. and this brings me -- >> 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
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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. >> there are a number of reasons why we think that's true. first of all, the court said in johnson it was the sum of the various attributes of the residual claws that created the problem. it said whatever might be the problem with one of those, it was the combination of those. >> i thought it was only two. the other things it mentions were -- >> no, but they were critical attributes of the two. that's the important point. >> i mean, what the court said is, i'm quoting, two features of the residual claws conspire to make it unconstitutionalel
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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 impinge indetermine i, about how to measure a risk posed by a crime, how much risk it takes for the crime to qualify as a violence only, the residual claws produces more unpredictable and arbitrariness than the due process claws authorized, toll lates. it says number one, ordinary cases analysis, number two, 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? >> they're very different here. as the court's decision dmon stragts it relied on the features that we believe are critically distinguish 16 b from the residual claws --
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>> ordinary case analysis? >> both statutes, right? >> no. but they operate in very different ways. 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 actual use of force. 16 b addresses those situations in which the elements of the offense involve a substantial risk that physical force will be used even though it's not actually an element. so whereas under the objecting ka residual claws the ordinary case analysis was not tied to the text of the relevant provision as it is here. the three provisions 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 that means you look at the elements and the nature of the offense involved a serious or substantial risk that physical force will be used, not the
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injury might result down the road, but physical force, which this court said is a focussed inquiry and specifically distinguished the possibility that harm might result and in footnote 7 the court distinguished sentencing guideline and said this is not open-ended like that. and then the 16 b says the substantial risk has to arise in the course of a commission of the offense which means it's tied both temp israel to the actual conduct of the offense and functions alley. does the substantial risk adhere in the elements of the offense. >> 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 -- it's probably less than ten% in which
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they confront someone. probably smaller amount when they actually use force against that person. lots of burglaries are done with open doors or with jim mig 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? >> well, again, i think starting with the text of 16 b, you look at the nature of the offense, the elements of the offense. it is inherent in those elements a risk, a substantial risk force will be used. and so looking at burglary, what is the nature of the offense with respect to the risk of harm -- excuse me, the risk of the use of force? well, this court said in roar
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acal that the nature of the offense there is that the burglar will encounter someone if it's risk of force against the person, that the phoneder will encounter someone while committing the offense -- >> justice scalia did exactly that? johnson and said the ordinary case and the risk of force or injury is something that you're leading to the judge's intuition. >> with respect justice scalia's opinion in johnson or in james or whatever case you may be speaking of, was not about 16 b. and a unanimous decision of this court written by chief justice rehnquist identified burglary as the classic example of what is covered by -- >> well, it wasn't part of the residual claws any way. >> mr. need her, may i ask you
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just a couple quick questions. >> sure. >> i hope they're quick. fist, 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 miss demean ant who may be convicted of a crime for which the sentence is six months in jail or $100 fine. and you wouldn't trade places in the world for someone who is 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 civil criminal divide itself is now a seven-part balancing test, not exclusive, so there may be more than search factors, as i understand it. and i look at the text of the constitution, always a good
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place to start, and the due process claws speaks of the loss of life, liberty or property. it doesn't draw a civil criminal line and elsewhere even in the fifth amendment i see that line drawn, the right to self-incrimination, for example. help me out with that. >> well, i think the analysis derives from thinking about what the purpose of vagueness restrictions are. and as this court has said tht criminal context, there are two basic points. one is that an individual person of common intelligence should know -- have notice of what the law requires -- >> notice of the law. isn't that important in 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 fine reads like that? >> well, the second point i was going to mention is whether it gives rise to the potential for arbitrary enforcement. and what's different about immigration, for example r from
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the criminal law, for example, the notion -- >> you'd agree that fair notice point pertains to both the civil and the criminal side. >> it does, but i think in different respects. in some ways the two points i just mentioned or the two points the court has emphasized are related in some ways. but with respect to the notice point in the immigration context, this court has held that the expo facto claws which is applicable in criminal proceedings does not apply in immigration proceedings and therefore a person may be removed from the united states on a ground that was not a ground for remooul at the time he engaged in the particular conduct. so the idea 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 lawyering or being annoying on the streets or something which is at the height of where i think the court's concern has
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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. >> mr. need her, does the government have another string in its bow here? we're arguing about 16 b and its resemblance, but you can be removed if you commit a crime of moral turpitude and wouldn't burglar fall under that? >> well, it would depend on the rules for what is a crime involving moral turpitude are somewhat intricate depending on the nature of the offense -- >> determine whether burglary is a crime of moral turpitude? >> again, it would depend on the
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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 conducted that the defendant's conduct in this case amounted to a crime involving moral turpitude. >> do you think the concept of a crime of moral turpitude is less vague than 16 b? >> no. i think not. but this, i think, brings to mind what's important about immigration enforcement or, frankly, a lot of -- >> mr. need her, a 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 proximate cause magsz like substantial or significant or severe that what gives it life is its application to actual facts. the difference between these two
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approaches is that this one is asking judges to hypothesize the facts and has nothing to do with the reality of the crime. >> with respect to, a crime involving moral turpitude, the cot gark alis applied there -- >> it is a different kind of cat gork alley approach, isn't it? it's asking what the elements of the offense are that everybody has to commit as opposed to the elements that people commit in the ordinary case, whatever that might be and that races 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 mind, should we look to a statistical analysis of the state reporter, survey, expert evidence, google, gut instinct. this is the problem with aca's as it is here is that we don't really have a source of law to
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look to to tell what an ordinary case is under either statute. >> no. i really don't think that's correct. in johnson, again, the court was concerned about a statute that referred to 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 -- >> before you get into that question, before you get into does it do this in terms of force or does it do that in 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 aca's residual claws according to justice scalia and the court was that there was no way to tell what that ordinary case was. >> again, with respect this court 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 burglary
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by its nature in the course of committing the offense gives rise to risk that physical force will be used against the offense because the person will encounter someone else. so inherent in the nature of burglary is the risk that the burglar will encounter someone -- >> mr. need her. >> while the crime is being committed. >> if i might interrupt. i'm sorry. but this raises a question for me about the nature of our task here. it seems to me that one function of our word for vagueness doctrine is not just to ebb sure fair notice, i think you'd agree with that. >> yes. >> yeah. >> about immigration -- >> of course not. of course not in this case. right. but generally, the doctrine serves that function. >> yes. >> 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.
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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 case 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? 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 would do. if i can't distinguish my job on a ledge laifb's committee work, am i verging on the separation of powers. >> there might be problems like that. but i think it's important for the court to focus on the core of what -- this, unlike the aca residual claws has a core. what the court -- another point we haven't discussed, what the court was concerned about -- >> but my question -- >> yeah.
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i was getting there. >> great. >> i apologize. if we look at the -- i think the court can comfortably look and see whether the statute has a core of phones. if there are ones for example that would give rise to the concern you're raising -- >> let's take burglary in california. 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, even take marry in california, how am i supposed to do what ordinary is? >> california burglary would be a close question, frankly. now, here it was resident -- class one -- >> if burglary is a close case -- >> no. california burglary. >> california burglary. >> only because california burglary does not require an unlawful entry or unlawful remaining. and therefore it does not
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satisfy generic burglary. but generic burglary, as this court again unanimously held in lay acal is a classic example. if i could use a couple of others just to show that the court is not at sea here. kidnapping is another. it may be a -- it's typically accomplished maybe by the use of force but can also be accomplished by trick. but that doesn't mean that it's not covered by 16 b because under 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 -- >> mr. need her, i'm sorry, i just am stuck on my question. how am i supposed to determine what the ordinary case is? should i bring in some experts ? if so, why isn't that a legislative function? >> there maybe cases where the statute itself is not clear as to whether the elements give
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rise to the requisite risk. and california burglar are maybe one. >> you would have me bring in experts? >> i'm not saying experts. where there are statistics available for example, as the there were in several of the courts cases under the resid chul clause. statistics were looked to to reenforce common sense. >> do you remember -- probably you do maybe not. that several judges i remember because one of them was me. some of the lower court judges say why doesn't the sentencing commission or why didn't that part of justice department that keeps track of statistics go out and find out what is the typical way in which for the provision, the other provision, they're committed. in case after case went by. nobody had the statistics. and i tended to think, well, they can't get them otherwise
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they would. and so what's the story? i think it's a similar question. to what is being asked. >> there maybe general categories of offenses where that. >> there were, in other words we never had a case. if i can remember. under that other provision. where somebody came up with statistics. despite what i call. >> there were statistics in chambers. >> there are some. >> and some statistics dealing with vehicle flight from -- >> probably not as good as a legislative committee. >> but i think it's important to recognize that what we have here is a legislative enactment in dh congress chose to identify the crimes that are covered by category the type of was offense and there's only so much one can expect from a legislature in identifying a category.
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16 b very closely tied to 16 a. 16 a involves the situation where the element of the offense itself involves the use or threaten or force. 16 b expands that slightly to say okay it may not be technically an element. is the offense under 16 b so intingt or inherent and contained a risk of the use of force that it should fall in congress's judgment in that same category. you look at other offenses a number of lower courts held the conspiracy to commit hods act robbery as a crime of violence. robbery certainly is a kroim 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 result in physical force. >> how about statutory rape?
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>> sex offenses of are difficult in any context. sexual abuse of a minor as the court knows from last years case. but there's a category of cases and we cite some in our brief. where with the sufficient age difference between an adult and minor. the use of physical force is inherent in the nature of the offense. that when the adult 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 adult can use force. >> is that the case? i thought most of the pornography cases that we're seeing are children not being physically forced into sex. but being tricked ento it by caretakers, or talked into it
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etc. when they have personal views about whether an adult can ever not be using improper -- >> but the point is. in that encounter the potential for the use of force the risk is always -- the same risk. and whether or not force is used nd 50% of the cases or 25% of the cases. >> so this is surprising. that the courts below are split on this question? just the way they were -- >> as we point out in the brief. the distinctions in the lower courts on this question and 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 say statutory rain or sexual abuse of a minor. the elements of the state offense may very. >> if i may take a slightly different direction. some criticized void for
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vagueness as a due process. and the legitimate on the score. others suggest it is a form of procedural due process. also a product of our separation of power. as we have discussed. to keep judges out of making new law. what's the governments position on that? >> i don't know that we have addressed it in precisely the terms. >> that's why i'm asking now. >> it feels like more of a due process limitation. >> why? because the doctrine doesn't prohibit the congress from legislating any area. it says you have to do a way that provides fair notice and doesn't involve this body in law making. >> well, in that sense that's first it has a procedural aspect. when you think about notice. it also requires -- >> congress could do specify any crime it wishes to include in the statute tomorrow.
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there's no limitation. >> it could. 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. >> even when it puts people in prison and deprive them of liberty and deportation. congress shouldn't specify those who are captured by their laws? >> we think the law reasonably captures the category congress thought whose congress gave rise to physical force being used. >> did i get correctly your answer to the question about turpitude being an al tern tiff the government could have pursued? the immigration judge found this was a crime. >> on grounds that we think we're not correct. the immigration judge didn't apply the category kal approach. which has been determined to be the right way to look at crime
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involving moral turpitude. >> thank you, mr. needler. >> thank you cheeief justice. let me begin with justice gor such's central point. this is not a job that congress can appropriately delegate to the courts, into enforcement officials on the ground, congress has written a statute that makes it impossible for ordinary citizens or for law enforcement or for immigration officials to figure out what the law is in congress's el gaited the function to them. it is done it with two features that this court described as dooming the act of resid chul clause. first the piece that most concerned the court. court said was most important.
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hypothesizing the ordinary case of a crime. and estimating the risk associated with that hypothesized version and whether that meets some vague standard. the government warned the court in johnson section 16 b was equally sus settable to challenge. the government was right then. and the differences in stach choir language that the government has since discovered do not change the out come. >> since discovered but the statute here says during the course of committing the offense. that's quite different from statute in johnson. >> your honor, it isn't quite different from the statute in johnson. the statute has the same limitation in different language. 16 b covers risks in the course of committing the crime.
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res -- i'd like to address concretely the in the course of committing the crime point. 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 me and you lock for substantial risk the physical force maybe used in order to satisfy the elements. that's not how any court was ever applying this provision. it's not how the government was telling courts to apply the provision. the government back then and even now, mr. needler points to conspiracy and other offenses. those offenses are completed the elements are completed when you say i want you to kill my wife
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here's a hundred bucks. they are cleated with the utterance of the words. you look after the utterance at least the government urged the kour. what about attempted burglary. johnson itself points out. burglary was a problem, why precisely because under the ordinary case of approach courts were required to look passed 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. the court said in johnson is that it's what happens after you cross the threshold that creates the risk. that's a -- then the government shifts to okay, no, no, it's while the crime is under way. that's what in the course of committing the crime means. that's not a solution.
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that is exactly the problem that johnson describes. it's concern was that the ordinary case analysis was quote detached from the statutory element. and that the it leaves courts to speculate about what happens after the statutory elements have been satisfy. while the crime is under way. that's just as imaginary. let's look -- >> suppose a state enacted a stoo statute that says no person maybe licensed to teach preschool. if the person has satisfied the language. not by reference to 16 b. but the language included. would that be unconstitutionally vague? >> no. i don't think it would be. if it's some state that's not incorporating by reference congress's handy work or saying
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or adopting this language because this is language congress adopted. it wouldn't be. i see we're shifting to the other piece of the case which is whether the application of criminal standards. >> yeah, well before i decide -- before i can determine whether this it unconstitutionally vague. i have to know the standard. that's my question. if we apply the standard that generally applies to civil statute, would this be unconstitutionally vague? we might do a wonderful job of pruning the united states code if we said that every sifl statute that is not written with the specificity required by criminal statute, we could boil that down a lot. that's what i'm asking. >> not at all. first you're talking about a civil statute here that is very different from deportation.
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>> i'm taking it by step by step. >> right. it's a licensing statute. three things to say about how this criminal standard applies in this civil context. the first is to the premise of your honors question. jordan settles the question the answer to the question how you apply criminal to the deportation context. this court never has to decide whether to reaffirm jordan. >> let's say we don't think jordan decided the issue. >> so two things to say before you even address jordan. and then the third thing to say jordan was right. the first two things of justices imbedded assumption. section 16 b is a criminal statute. that congress elected to import wholesale into this statute. this court has held that if
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congress does that, it must -- the courts must apply the same criminal vagueness standards to this statute. >> minor point that gets off the basic point. it didn't incorporate exactly the statute. the language is different. >> your honor, i'm sorry justice kennedy. congress literally said in the ina that the crime of the definition of crime of violence is the definition of section 16 b. section 16 b being a criminal statute. it added all sort of bells and whistles of other ways to create an aggravated felony. this court said here's what you do when you have a statute that has criminal and civil applications. >> i took us away from justice wants to know the standards for determining vagueness in civil cases. >> the standard for determining vagueness in civil cases was
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laid out by the court in hofman estates. and the answer is it depends on how serious the crime is. the seriousness of the crime -- excuse me. how serious the penalty is. or how serious the consequence is. >> exactly. that's where i get stuck. because the consequences in many civil matters could be very grave. more so even than a lot of criminal penalties. civil take a man's home. deport him. and i can think of other examples. can be graver than any misdemeanor offense on the books today. again the line between civil and criminal depends on a seven part non-inclusive test. what am i supposed to do with that? >> i will answer the question. >> great. >> let me say i have only mentioned one of the reasons that this court doesn't have to figure out the answer to the
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question. let me -- >> all right let's answer the question first. >> so, i would go back to your point justice, that this court has repeatedly rejected a sharp line between civil and criminal. the correct distinction is the one that the court identified in hofman estates. cases whether civil or criminal with severe consequences. >> how do i determine that? >> here's how. one thing -- by the way this court never had the answer the question since hofman estates set this out. it's not a question that arises very often. the way the court answers the question here is we know that criminal cases and first amendment cases are in 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 banishment, exile, lifetime banishment. the framers understood banishment to be a equal to taking away that which makes
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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 ginsburg example. in a case involving a criminal protection. that is a constitutional protection that relates only to crime, that is 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 tell me that i could -- >> i get you don't want to answer the question. i'm very interested in the answer. which is justice gor such is asking how do you, where do you
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draw the line? civil vagueness and non-acceptable civil vagueness? >> hofman estates says it varies. the law in between the severest penalties and those less severe. the answer is if it is on a par with a criminal punishment such that someone would trade one for the other the court answered that question in lee. in lee this court said as justice said earlier today, most people would happily take extra time in prison in order to avoid the consequence of deportation. >> my earlier question was about licensing. suppose this language applies to license as an attorney. license as a physician. taking that away from a person is severe. >> yes, your honor. not as severe as lifetime banishment from the country. which is proceeded by automatic
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and mandatory imprisonment. >> when we aren't we going get into the same sort of legislating. how severe, where is the line? >> this is the line the court drew in hofman estates. decades ago. >> what about this line? life, liberty or property? >> great line. >> one of the text of the due process clause itself. >> great line. in particularly here we're talking about a liberty interest. a an interest that says you must leave the for some people the only home that you have ever had. you must leave your family. so that when someone is making the decision am i going to plead guilty to a crime that i have didn't commit in return for time served? he needs to know by the way in term for crime served so he can get back to his wife and kids. he needs to know whether ice is standing out there depriving him
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on that liberty and deporting him from his wife and kids. >> do you think you could go back to kennedys original question. if you don't recall. is let's look at the old -- 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. then there were a lot of examples it's awfully tough to figure out whether it does or does not fall within the words. now let's look at this language. it involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. that would seem to be if the offense is conspiracy to commit burglary, the conspiracy is
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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. that becomes tougher. okay. let's look at our statute now. give me some examples i'm sure there are many. i think it would be helpful where under this language it seems my god, what is the basic case. this is impossible. >> i'll give you several. first. vehicular flight. okay. how do -- the court was mired in controversy about how you figure out whether vehicular flight is going to give rise to the right sort of risk. how did the court did it? it was looking at the moments or the long time frame after the elements were satisfied. the moment you pull out you are
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in vehicular flight. in the course of certainly doesn't help. in the distinction between physical force and physical injury doesn't help. 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 tres paz. it depends upon first what do you imagine the ordinary case to be and figure out how it plays out. or car burglary. same exact problem. or to take one example. extortion. it depends upon the ordinary case analysis which goes back to justice sotomayor's question early on. the heart of the problem is this ordinary case approach and none of the statutory differences that the government pointed to help you figure out what the
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ordinary case is. >> just a to tie in this ordinary case problem with this phrase about during the commission of the crime, has the government in the briefing and all of the 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 me in not just elements but a general view of what the crime is. >> in this case. >> i'm suggesting the government has never come up with a single case under aka in which, remember it 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 hasn't told us of any. >> that is correct. after the crime is over.
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the 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. that's out. so that's the example. but in order to get there the government has to take the quintessential crime of violence. and say it's not. >> that's inconsistent with everything that the government is said. in multiple cases. isn't that correct? >> the courts of appeals that have said that those crimes are within the residual. >> that's an example. the government said that's in. >> that's in. >> right. so if that's in, then the whole notion of in the course of committing the crime doesn't do any work. >> similarly the government -- >> different point.
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could the government ask 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 interest of the people of the united states? >> that is the basis of deportation. no. >> why? >> i'm sorry. let me back up. >> another, what standard must a statute meet before an administrative officer can make the determination that the remaining in the united states is not in the best interest of the united states? would that suffice. would that be unconstitutional? >> that would be unconstitutional. >> under what rule? >> criminal void for vagueness rule. a reasonable person whether it is the depor tee, or an official
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on the ground or administrative law judge would have no idea what the content of the prescription is. as a basis for being within the universe of people who identified as being deportable. now if it's a basis for the attorney general's exercise of discretion, that despite the fact you are deportable as congress defined it. i will not deport you. that's another story. by the way that was the moller case. >> what do you say to the critique the void for vagueness doctrine is due process. and suspect on that basis. therefore should be construed. >> it's not substive due process. it's a procedural due process concern. and it's a separation of power concern. it's both of those. it is the procedural right on the part of the individual who is being accused or being deported to know what the law is in advance.
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and as justice thomas has explained very eloquently, it derifs out of the rule. 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 review and limited judicial opportunity review. that is a classic abdication of congressional authority to line level officers. >> how is it procedural? i don't understand how you can say it's a procedural right. you said the statute is void for vagueness. that's a substive. >> it's void for vagueness. when it's being applied to an individual that individual is given no notice that lifetime banishment is going to be the
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consequence of what he thought to be a safe harbor. >> what if he was given notice in some other way? >> i think it depends in what way. this court said in johnson, johnson actually had notice. john on knew that the illegal the sawed off shotgun was illegal. the court struck the statute sfwl that makes my point. he had notice. he knew. so where's the procedural violation? >> for the vast majority of people and the people affected by it it's procedural. i just realize in this kol kwi, i never did answer the other part of your honor's question. about the reasons why the vagueness starpd applies here. the criminal vagueness standard. the first they said before you ever get to jordan is that the 16 p is itself a criminal statute. the second reason is the point
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ha justice gor such was making about the relationship between criminal law and immigration law. there is not an area of law where the two are as integrated. the aca provision here in particular has very significant criminal consequences. the aggravated felon label once you are an aggravated felon, that's in the ina. certain immigration crimes are triggered and so aggravated felon becomes a an element of a crime. i'll give you an example. 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.
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but, an aggravated felon who reenters this country is prosecuted as an aggravated felon. if he reentered the country he can be not -- he can then not be prosecuted as an aggravated felon. because the statute would be too vague. that makes no sense. which is exactly why this court adopted the rule that it adopted in and four members of the court repeated in north western bell. which is if congress makes that choice to give civil and criminal ramifications to the same statute, the very same statute, the statute is void for vague and one context it's void for vague in the other. and by the way, that other context in ab small was a silly little contract case. not even a the licensing of a
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nursery. >> can i ask you a simple question? if as this court is held crime of moral turpitude isn't unconstitutionally vague, why should 16 b -- >> 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. by the way, what did the court do in jordan? what the court did 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.
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that's why you lost the case. and if he had been criminally prosecuted urnds a statute that made an element of the crime that it be a crime involving moral turpitude, the same result would obtain. >> maybe you have in your head a list of you could categorize any offense i might mention. and say that's a crime of moral turpitude. that's not. i couldn't do that. i doubt that somebody who's facing possible removal consequences would be able to answer the question. shooting a bald eagle. is that a crime of moral turpitude? some people would think so. >> it is not. nor is flag burning. let me answer this way. you don't have to know, but you have to be able to go to some place like a lawyer who can tell you what the answer is. and where does a lawyer go?
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14 pages of where every single possible crime is cot gorized as in or out. based on decades of judicial and other interpretations. that's how one knows. >> and in a crime of moral turpitude dwoent have to consider what the ordinary case is. do we? >> i think that's what the -- not the ordinary case. that's for sure. >> we look to the elements that everybody has to make. >> correct. so let me close with this. i appreciate the instinct to try and see if this court can do better with section 16 b. than it did with residual clause. in deciding whether to take the route this court has to decide whether anything is to be gained by the whole enterprise of sendsing the lower courts back to apply now a different standard and figure out how it applies to all of the crimes. that process is going to be no less arbitrary or speculative.
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and lifetime banishment shouldn't hang on the unpredictable answer to the question is this crime in our is it out? congress can of course decide the circumstances under which lifetime residents can be kicked out of this country. it disserves the separation of power that justice referred to. to allow congress to pass the buck to immigration officials in courts where with a provision this vague. we respectfully request that the court affirm the court of appeals. thank you. >> thank you, counsel. mr. needler, three points. >> 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 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
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conspiracy. the same thing with burglary. it's not over when you enter the house. it's over when you leave the house. kidnapping is not over until the victim is free. escaped from a prison is a continuing offense. 16 b and 924 c serve a critical role in circumstances like that. where a crime extends over a period of time. you can complete the crime without violence being an element, but it is insingt with the risk of crime and that is why -- excuse me force. that is why congress addressed it and that's what the court unanimously focussed upon in. this 16 b has been on the books for 30 years and hasn't generated anything like the sort of confusion that residual clause did. this court we submit should pause greatly before extracting from the u.s. code.
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a statute that has so many applications. this statute is applied all the time through the mediation of the administrative body. it's not like a regular civil law in that respect. >> in how many of those cases is the the sole basis? of the deportation. >> i don't know the percentage. it's a basis for denial of discretion nar relief. also in deciding what falls in the category, statistics are not the major thing. there are plenty of things to look at. the body of judicial decisions construing the provision. that the background of the legal tradition. which is what the court drew on in saying the burglary is a classic example. it's a classic example for the reasons that i just gave. you can look at the legislative judgment and body in the crime. is the circumstances when force is not used is it like the situation where the elements are
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present. you ask for an example of a crime that would be in under aca 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. that's out here because it's not in the course of committing the crime of possession. we said it was in in aca because it's injury might flow. it was actually a good illustration of the difference between the two circumstances. finally with respect to immigration, i think it's important for the court to understand that immigration provisions and grounds for deportation are written in broad and general terms. and given content by the executive branch in which congress has vested authority. crime involving moral. >> you're not asking the executive to define the crimes, you're asking us to do it right? >> in the immigration context. >> this is an example where a congress is delegated the
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authority to executive to do this. you're suggesting it's delegated to this branch to do it. >> no. it's not delegated to the branch. this branch has to construe the statute that congress is enacted in other circumstances. the agency of course gets deference. in deciding what institutes a particular ruefulable offense. >> thank you, counsel. the case is submitted. landmark cases. a c-span history series about the supreme court returns in february. 12 frequently cited cases heard from the high court. live on c-span beginning in february. the washington post hosts a confers on oip yoed addiction. we're hear from senators. live coverage begins at 9:00 a.m. eastern here an c-span
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3. in the afternoon, the commander of u.s. central command will talk about u.s. arab relations. hosted by the national conference. 2:05 p.m. eastern. also on c-span 3. you can watch both events online at or the free c-span radio app. sunday night on after words. >> over 90% of sexual harassment cases end up in settlement. and what's that mean? that means that the woman never works in her chosen career ever again. and she can never talk about it. she's gagged. how else do we solve sexual harassment suits? we put in arbitration clauses and employment contracts. which make it a secret proceeding. so again nobody ever finds out about it. if you file complaint. you can never talk about it. ever. nobody ever knows what happened
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to you. in most cases you're terminated from the company and the predator is left to still work. in the same position in which he was harassing you. so this is the way our society has decided to resolve sexual harassment cases. to gag women so we can fool everyone else out there that we have come so far in 2017. former fox news host grechen karlson talks about sexual harassment in her new book be fierce. stop harassment and take your power back. watch after words sunday night at 9 eastern on c-span 2 book tv. next. a house panel looks a the possible threat posed by north cre korea. including the potential


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