Last Tuesday, the Supreme Court heard oral argument in Lynch v. Dimaya, a case challenging the constitutionality of 18 U.S.C. § 16(b), which defines the term “crime of violence.”  As a firm, we frequently encounter these issues in our practice, and as a result have been closely following the Dimaya case. You can read our post: “Violent Felony” And “Crime of Violence”: What Johnson v. United States Can Mean For Other Federal Criminal Statutes Involving Violent Crimes for a general overview of the kinds of issues that Dimaya involves.

What happened in Lynch v. Dimaya? 

Dimaya was an alien who was found “removable” by the immigration authorities because of his two prior burglary convictions, which were deemed “crimes of violence” under § 16(b).  On appeal, he argued the § 16(b) is unconstitutionally vague in light of the Supreme Court’s 2015 Johnson decision, and the Ninth Circuit agreed. The government petitioned the Supreme Court for review, and the Supreme Court granted cert to resolve the current circuit split in the wake of Johnson.

What were the government’s arguments in Lynch v. Dimaya? 

The government tried to persuade the Supreme Court to uphold the constitutionality of §16(b) on two grounds:

• First, the government argued that, because Dimaya is an immigration case, rules that apply to criminal cases—including the constitution’s prohibition against vague statutes—do not apply to Dimaya.
• Second, the government argued that even under the vagueness standard applicable only to criminal cases, § 16(b) withstands scrutiny because certain textual differences between it and the provision that was found unconstitutional in Johnson makes 16(b) more specific and precise.

What were Dimaya’s arguments in response? 

Dimaya, as the party defending the Ninth Circuit’s ruling, naturally argued that the government is wrong on both counts.

• As to the government’s argument that vagueness rules don’t apply in immigration cases, Dimaya pointed out that there is already precedent for that in a 1951 case, Jordan v. Degorge, in which the Supreme Court applied the constitutional vagueness standard to an immigration statute defining “crime of moral turpitude” because of “the grave nature of deportation.”
• As to the textual differences between § 16(b) and the provision invalidated in Johnson, Dimaya argued that those differences were either illusory, or not central to the outcome in Johnson.

How did the Justices respond to the arguments by both parties? 

The government raised two issues in Dimaya. Most of the argument time was spent discussing the substantive question: is § 16(b) unconstitutionally vague?   Several justices, chiefly among them Justice Alito, also spent time discussing the procedural question: does the criminal vagueness standard even apply in this case?  Here is a brief summary of how the Justices responded to each issue.

Does the criminal vagueness standard apply in an immigration case?

The justices seemed split on whether to apply the criminal vagueness standard in Dimaya.

Some Justices seem poised to reject this argument.  Justice Sotomayor, for example, alluded to the “draconian effects of removal and deportation” when the government first introduced the argument.  Similarly, the Chief Justice pointed out that if the Court were to decide Dimaya on the immigration rationale, they would still have to come back and consider § 16(b)’s constitutionality at some future time because § 16(b) is also used in criminal statutes.

On the other hand, some justices are concerned about using the criminal vagueness standard in this case.  Notably, Justice Alito pointed out that if the criminal vagueness standard applies in an immigration case, then the converse must also be true, and a criminal statute that used an immigration term like “crime of moral turpitude” would be able to survive vagueness challenges.  Justice Breyer also expressed some discomfort with equating the vagueness standard in criminal and civil cases, noting that this would spell trouble for many other terms used in civil cases, such as: “moral turpitude,” “unfair competition,” “just and reasonable rates,” etc.

If criminal vagueness standard applies, is § 16(b) constitutional?

Most of the argument time was spent on the substantive question of whether, assuming the criminal vagueness standard applies, § 16(b) is unconstitutionally vague.  On this issue, most of the justices indicated a belief § 16(b) is not materially different from the provision they struck down in Johnson.

Justice Sotomayor, for example, started off the argument by pointing out that the “ordinary case analysis” and the imprecise “substantial risk” standard were the two features that were central to Johnson, and both features are present in § 16(b), and asked the government to distinguish Johnson.  Later, as the government tried to explain why burglary is a “classic example” covered by § 16(b) despite its supposedly narrower reach, Justice Sotomayor quipped that “so we’re now going back to gut instinct.”  Towards the end of the argument, Justice Sotomayor also expressed unease about the number of cases that would be coming to the Court if § 16(b) survives a vagueness challenge.

Justice Kagan aggressively questioned the government on its argument that § 16(b) is a narrower provision, and tried to get the government to come up with an example of a crime that would be covered by the residual clause struck down in Johnson, but falls outside of § 16(b). She was unpersuaded by the examples that the government used, which included burglary and possession of a shotgun.

Justice Breyer did not clearly indicate what he thought, but suggested that he was open to abandoning the categorical approach altogether—something Justice Alito had suggested in his dissent in Johnson. 

Both Justice Kennedy and the Chief Justice thought there was some merit to the government’s argument that § 16(b) is different from the provision invalidated in Johnson because it does not have a “confusing list” of exemplar crimes.  However, neither Justice indicated that they thought this difference alone is sufficient to help § 16(b) survive.

Conclusion and a prediction of the outcome

The justices seem divided about whether to apply the vagueness standard applicable to criminal cases in an immigration case.  Justice Alito most clearly thinks that the Court should not.  Other justices, such as Justice Sotomayor, may feel that given the heavy penalties associated with removal and deportation, the Court should apply the same vagueness standard here as it would in a criminal case.  Thus, one way the Court can decide Dimaya is by holding that the vagueness prohibition applicable to criminal cases does not apply here, and leave it at that.

However, if the court decides to apply the same vagueness standard and proceed to the merits question, most of the justices seem to believe that there is no material difference between § 16(b) and the provision invalidated in Johnson. Chief Justice Roberts and Justice Kennedy both accepted that the “confusing list” of crimes in the provision invalidated by Johnson made the statute even more vague, but neither Justice indicated that this difference alone is sufficient.  None of the justices seem persuaded by any of the other differences urged by the government.

The most likely outcome of this case is a ruling affirming the Ninth Circuit’s decision.