Sessions v. Dimaya

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SESSIONS, ATTORNEY GENERAL v. DIMAYA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 15–1498. Argued January 17, 2017—Reargued October 2, 2017—
Decided April 17, 2018
The Immigration and Nationality Act (INA) virtually guarantees that
any alien convicted of an “aggravated felony” after entering the Unit-
ed States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii),
1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of vio-
lence (as defined in [18 U. S. C. §16] . . . ) for which the term of im-
prisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s defi-
nition of a crime of violence is divided into two clauses—often
referred to as the elements clause, §16(a), and the residual clause,
§16(b). The residual clause, the provision at issue here, defines a
“crime of violence” as “any other offense that is a felony and that, by
its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of commit-
ting the offense.” To decide whether a person’s conviction falls within
the scope of that clause, courts apply the categorical approach. This
approach has courts ask not whether “the particular facts” underly-
ing a conviction created a substantial risk, Leocal v. Ashcroft, 543
U. S. 1, 7, nor whether the statutory elements of a crime require the
creation of such a risk in each and every case, but whether “the ordi-
nary case” of an offense poses the requisite risk, James v. United
States, 550 U. S. 192, 208.
Respondent James Dimaya is a lawful permanent resident of the
United States with two convictions for first-degree burglary under
California law. After his second offense, the Government sought to
deport him as an aggravated felon. An Immigration Judge and the
Board of Immigration Appeals held that California first-degree bur-
glary is a “crime of violence” under §16(b). While Dimaya’s appeal
was pending in the Ninth Circuit, this Court held that a similar re-
2 SESSIONS v. DIMAYA
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sidual clause in the Armed Career Criminal Act (ACCA)—defining
“violent felony” as any felony that “otherwise involves conduct that
presents a serious potential risk of physical injury to another,” 18
U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness”
under the Fifth Amendment’s Due Process Clause. Johnson v. Unit-
ed States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit
held that §16(b), as incorporated into the INA, was also unconstitu-
tionally vague.
Held: The judgment is affirmed.
803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to
Parts I, III, IV–B, and V, concluding that §16’s residual clause is un-
constitutionally vague. Pp. 6–11, 16–25.
(a) A straightforward application of Johnson effectively resolves
this case. Section 16(b) has the same two features as ACCA’s residu-
al clause—an ordinary-case requirement and an ill-defined risk
threshold—combined in the same constitutionally problematic way.
To begin, ACCA’s residual clause created “grave uncertainty about
how to estimate the risk posed by a crime” because it “tie[d] the judi-
cial assessment of risk” to a speculative hypothesis about the crime’s
“ordinary case,” but provided no guidance on how to figure out what
that ordinary case was. 576 U. S., at ___. Compounding that uncer-
tainty, ACCA’s residual clause layered an imprecise “serious poten-
tial risk” standard on top of the requisite “ordinary case” inquiry.
The combination of “indeterminacy about how to measure the risk
posed by a crime [and] indeterminacy about how much risk it takes
for the crime to qualify as a violent felony,” id., at ___, resulted in
“more unpredictability and arbitrariness than the Due Process
Clause tolerates,” id., at ___. Section 16(b) suffers from those same
two flaws. Like ACCA’s residual clause, §16(b) calls for a court to
identify a crime’s “ordinary case” in order to measure the crime’s risk
but “offers no reliable way” to discern what the ordinary version of
any offense looks like. Id., at ___. And its “substantial risk” thresh-
old is no more determinate than ACCA’s “serious potential risk”
standard. Thus, the same “[t]wo features” that “conspire[d] to make”
ACCA’s residual clause unconstitutionally vague also exist in §16(b),
with the same result. Id., at ___. Pp. 6–11.
(b) The Government identifies three textual discrepancies between
ACCA’s residual clause and §16(b) that it claims make §16(b) easier
to apply and thus cure the constitutional infirmity. None, however,
relates to the pair of features that Johnson found to produce imper-
missible vagueness or otherwise makes the statutory inquiry more
determinate. Pp. 16–24.
(1) First, the Government argues that §16(b)’s express require-
Cite as: 584 U. S. ____ (2018) 3
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ment (absent from ACCA) that the risk arise from acts taken “in the
course of committing the offense,” serves as a “temporal restriction”—
in other words, a court applying §16(b) may not “consider risks aris-
ing after” the offense’s commission is over. Brief for Petitioner 31.
But this is not a meaningful limitation: In the ordinary case of any of-
fense, the riskiness of a crime arises from events occurring during its
commission, not events occurring later. So with or without the tem-
poral language, a court applying the ordinary case approach, whether
in §16’s or ACCA’s residual clause, would do the same thing—ask
what usually happens when a crime is committed. The phrase “in
the course of” makes no difference as to either outcome or clarity and
cannot cure the statutory indeterminacy Johnson described.
Second, the Government says that the §16(b) inquiry, which focus-
es on the risk of “physical force,” “trains solely” on the conduct typi-
cally involved in a crime. Brief for Petitioner 36. In contrast,
ACCA’s residual clause asked about the risk of “physical injury,”
requiring a second inquiry into a speculative “chain of causation that
could possibly result in a victim’s injury.” Ibid. However, this Court
has made clear that “physical force” means “force capable of causing
physical pain or injury.” Johnson v. United States, 559 U. S. 133,
140. So under §16(b) too, a court must not only identify the conduct
typically involved in a crime, but also gauge its potential consequenc-
es. Thus, the force/injury distinction does not clarify a court’s analy-
sis of whether a crime qualifies as violent.
Third, the Government notes that §16(b) avoids the vagueness of
ACCA’s residual clause because it is not preceded by a “confusing list
of exemplar crimes.” Brief for Petitioner 38. Those enumerated
crimes were in fact too varied to assist this Court in giving ACCA’s
residual clause meaning. But to say that they failed to resolve the
clause’s vagueness is hardly to say they caused the problem. Pp. 16–
21.
(2) The Government also relies on judicial experience with
§16(b), arguing that because it has divided lower courts less often
and resulted in only one certiorari grant, it must be clearer than its
ACCA counterpart. But in fact, a host of issues respecting §16(b)’s
application to specific crimes divide the federal appellate courts. And
while this Court has only heard oral arguments in two §16(b) cases,
this Court vacated the judgments in a number of other §16(b) cases,
remanding them for further consideration in light of ACCA decisions.
Pp. 21–24.
JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and
JUSTICE SOTOMAYOR, concluded in Parts II and IV–A:
(a) The Government argues that a more permissive form of the
void-for-vagueness doctrine applies than the one Johnson employed
4 SESSIONS v. DIMAYA
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because the removal of an alien is a civil matter rather than a crimi-
nal case. This Court’s precedent forecloses that argument. In Jor-
dan v. De George, 341 U. S. 223, the Court considered what vague-
ness standard applied in removal cases and concluded that, “in view
of the grave nature of deportation,” the most exacting vagueness
standard must apply. Id., at 231. Nothing in the ensuing years calls
that reasoning into question. This Court has reiterated that deporta-
tion is “a particularly severe penalty,” which may be of greater con-
cern to a convicted alien than “any potential jail sentence.” Jae Lee v.
United States, 582 U. S. ___, ___. Pp. 4–6.
(b) Section 16(b) demands a categorical, ordinary-case approach.
For reasons expressed in Johnson, that approach cannot be aban-
doned in favor of a conduct-based approach, which asks about the
specific way in which a defendant committed a crime. To begin, the
Government once again “has not asked [the Court] to abandon the
categorical approach in residual-clause cases,” suggesting the fact-
based approach is an untenable interpretation of §16(b). 576 U. S., at
___. Moreover, a fact-based approach would generate constitutional
questions. In any event, §16(b)’s text demands a categorical ap-
proach. This Court’s decisions have consistently understood lan-
guage in the residual clauses of both ACCA and §16 to refer to “the
statute of conviction, not to the facts of each defendant’s conduct.”
Taylor v. United States, 495 U. S. 575, 601. And the words “by its na-
ture” in §16(b) even more clearly compel an inquiry into an offense’s
normal and characteristic quality—that is, what the offense ordinari-
ly entails. Finally, given the daunting difficulties of accurately “re-
construct[ing],” often many years later, “the conduct underlying [a]
conviction,” the conduct-based approach’s “utter impracticability”—
and associated inequities—is as great in §16(b) as in ACCA. John-
son, 576 U. S., at ___. Pp. 12–15.
JUSTICE GORSUCH, agreeing that the Immigration and Nationality
Act provision at hand is unconstitutionally vague for the reasons
identified in Johnson v. United States, 576 U. S. ___, concluded that
the void for vagueness doctrine, at least properly conceived, serves as
a faithful expression of ancient due process and separation of powers
principles the Framers recognized as vital to ordered liberty under
the Constitution. The Government’s argument that a less-than-fair-
notice standard should apply where (as here) a person faces only civ-
il, not criminal, consequences from a statute’s operation is unavail-
ing. In the criminal context, the law generally must afford “ordinary
people . . . fair notice of the conduct it punishes,” id., at ___, and it is
hard to see how the Due Process Clause might often require any less
than that in the civil context. Nor is there any good reason to single
out civil deportation for assessment under the fair notice standard
Cite as: 584 U. S. ____ (2018) 5
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because of the special gravity of its penalty when so many civil laws
impose so many similarly severe sanctions. Alternative approaches
that do not concede the propriety of the categorical ordinary case
analysis are more properly addressed in another case, involving ei-
ther the Immigration and Nationality Act or another statute, where
the parties have a chance to be heard. Pp. 1–19.
KAGAN, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, III, IV–B, and V, in which
GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opin-
ion with respect to Parts II and IV–A, in which GINSBURG, BREYER, and
SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in
part and concurring in the judgment. ROBERTS, C. J., filed a dissenting
opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS,
J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined
as to Parts I–C–2, II–A–1, and II–B.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1498
_________________
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL,
PETITIONER v. JAMES GARCIA DIMAYA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 17, 2018]
JUSTICE KAGAN announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, III, IV–B, and V, and an opinion with respect to
Parts II and IV–A, in which JUSTICE GINSBURG, JUSTICE
BREYER, and JUSTICE SOTOMAYOR join.
Three Terms ago, in Johnson v. United States, this
Court held that part of a federal law’s definition of “violent
felony” was impermissibly vague. See 576 U. S. ___
(2015). The question in this case is whether a similarly
worded clause in a statute’s definition of “crime of vio-
lence” suffers from the same constitutional defect. Adher-
ing to our analysis in Johnson, we hold that it does.
I
The Immigration and Nationality Act (INA) renders
deportable any alien convicted of an “aggravated felony”
after entering the United States. 8 U. S. C.
§1227(a)(2)(A)(iii). Such an alien is also ineligible for
cancellation of removal, a form of discretionary relief
allowing some deportable aliens to remain in the country.
See §§1229b(a)(3), (b)(1)(C). Accordingly, removal is a
virtual certainty for an alien found to have an aggravated
2 SESSIONS v. DIMAYA
Opinion of the Court
felony conviction, no matter how long he has previously
resided here.
The INA defines “aggravated felony” by listing numer-
ous offenses and types of offenses, often with cross-
references to federal criminal statutes. §1101(a)(43); see
Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at
2). According to one item on that long list, an aggravated
felony includes “a crime of violence (as defined in section
16 of title 18 . . . ) for which the term of imprisonment [is]
at least one year.” §1101(a)(43)(F). The specified statute,
18 U. S. C. §16, provides the federal criminal code’s defini-
tion of “crime of violence.” Its two parts, often known as
the elements clause and the residual clause, cover:
“(a) an offense that has as an element the use, at-
tempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical
force against the person or property of another may be
used in the course of committing the offense.”
Section 16(b), the residual clause, is the part of the statute
at issue in this case.
To decide whether a person’s conviction “falls within the
ambit” of that clause, courts use a distinctive form of what
we have called the categorical approach. Leocal v. Ash-
croft, 543 U. S. 1, 7 (2004). The question, we have ex-
plained, is not whether “the particular facts” underlying a
conviction posed the substantial risk that §16(b) demands.
Ibid. Neither is the question whether the statutory ele-
ments of a crime require (or entail) the creation of such a
risk in each case that the crime covers.1 The §16(b) in-
——————
1 The
analysis thus differs from the form of categorical approach used
to determine whether a prior conviction is for a particular listed offense
(say, murder or arson). In that context, courts ask what the elements of
a given crime always require—in effect, what is legally necessary for a
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Opinion of the Court
quiry instead turns on the “nature of the offense” gener-
ally speaking. Ibid. (referring to §16(b)’s “by its nature”
language). More precisely, §16(b) requires a court to ask
whether “the ordinary case” of an offense poses the requi-
site risk. James v. United States, 550 U. S. 192, 208
(2007); see infra, at 7.
In the case before us, Immigration Judges employed
that analysis to conclude that respondent James Dimaya
is deportable as an aggravated felon. A native of the
Philippines, Dimaya has resided lawfully in the United
States since 1992. But he has not always acted lawfully
during that time. Twice, Dimaya was convicted of first-
degree burglary under California law. See Cal. Penal
Code Ann. §§459, 460(a). Following his second offense, the
Government initiated a removal proceeding against him.
Both an Immigration Judge and the Board of Immigration
Appeals held that California first-degree burglary is a
“crime of violence” under §16(b). “[B]y its nature,” the
Board reasoned, the offense “carries a substantial risk of
the use of force.” App. to Pet. for Cert. 46a. Dimaya
sought review in the Court of Appeals for the Ninth
Circuit.
While his appeal was pending, this Court held unconsti-
tutional part of the definition of “violent felony” in the
Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e).
ACCA prescribes a 15-year mandatory minimum sentence
if a person convicted of being a felon in possession of a
firearm has three prior convictions for a “violent felony.”
§924(e)(1). The definition of that statutory term goes as
follows:
“any crime punishable by imprisonment for a term ex-
ceeding one year . . . that—
“(i) has as an element the use, attempted use, or
——————
conviction. See, e.g., Descamps v. United States, 570 U. S. 254, 260–261
(2013); Moncrieffe v. Holder, 569 U. S. 184, 190–191 (2013).
4 SESSIONS v. DIMAYA
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Opinion of K Court
AGAN, J.
threatened use of physical force against the person of
another; or
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.”
§924(e)(2)(B) (emphasis added).
The italicized portion of that definition (like the similar
language of §16(b)) came to be known as the statute’s
residual clause. In Johnson v. United States, the Court
declared that clause “void for vagueness” under the Fifth
Amendment’s Due Process Clause. 576 U. S., at ___–___
(slip op., at 13–14).
Relying on Johnson, the Ninth Circuit held that §16(b),
as incorporated into the INA, was also unconstitutionally
vague, and accordingly ruled in Dimaya’s favor. See Di-
maya v. Lynch, 803 F. 3d 1110, 1120 (2015). Two other
Circuits reached the same conclusion, but a third distin-
guished ACCA’s residual clause from §16’s.2 We granted
certiorari to resolve the conflict. Lynch v. Dimaya, 579
U. S. ___ (2016).
II
“The prohibition of vagueness in criminal statutes,” our
decision in Johnson explained, is an “essential” of due
process, required by both “ordinary notions of fair play and
the settled rules of law.” 576 U. S., at ___ (slip op., at 4)
(quoting Connally v. General Constr. Co., 269 U. S. 385,
391 (1926)). The void-for-vagueness doctrine, as we have
called it, guarantees that ordinary people have “fair no-
tice” of the conduct a statute proscribes. Papachristou v.
Jacksonville, 405 U. S. 156, 162 (1972). And the doctrine
——————
2 CompareShuti v. Lynch, 828 F. 3d 440 (CA6 2016) (finding §16(b)
unconstitutionally vague); United States v. Vivas-Ceja, 808 F. 3d 719(CA7 2015) (same), with United States v. Gonzalez-Longoria, 831 F. 3d
670 (CA5 2016) (en banc) (upholding §16(b)).
Cite as: 584 U. S. ____ (2018) 5
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Opinion of K Court
AGAN, J.
guards against arbitrary or discriminatory law enforce-
ment by insisting that a statute provide standards to
govern the actions of police officers, prosecutors, juries,
and judges. See Kolender v. Lawson, 461 U. S. 352, 357–
358 (1983). In that sense, the doctrine is a corollary of the
separation of powers—requiring that Congress, rather
than the executive or judicial branch, define what conduct
is sanctionable and what is not. Cf. id., at 358, n. 7 (“[I]f
the legislature could set a net large enough to catch all
possible offenders, and leave it to the courts to step inside
and say who could be rightfully detained, [it would] substi-
tute the judicial for the legislative department” (internal
quotation marks omitted)).
The Government argues that a less searching form of
the void-for-vagueness doctrine applies here than in John-
son because this is not a criminal case. See Brief for Peti-
tioner 13–15. As the Government notes, this Court has
stated that “[t]he degree of vagueness that the Constitu-
tion [allows] depends in part on the nature of the enact-
ment”: In particular, the Court has “expressed greater
tolerance of enactments with civil rather than criminal
penalties because the consequences of imprecision are
qualitatively less severe.” Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U. S. 489, 498–499 (1982). The
removal of an alien is a civil matter. See Arizona v. United
States, 567 U. S. 387, 396 (2012). Hence, the Govern-
ment claims, the need for clarity is not so strong; even a
law too vague to support a conviction or sentence may be
good enough to sustain a deportation order. See Brief for
Petitioner 25–26.
But this Court’s precedent forecloses that argument,
because we long ago held that the most exacting vague-
ness standard should apply in removal cases. In Jordan v.
De George, we considered whether a provision of immigra-
tion law making an alien deportable if convicted of a
“crime involving moral turpitude” was “sufficiently defi-
6 SESSIONS v. DIMAYA
Opinion of the Court
nite.” 341 U. S. 223, 229 (1951). That provision, we noted,
“is not a criminal statute” (as §16(b) actually is). Id., at
231; supra, at 1–2. Still, we chose to test (and ultimately
uphold) it “under the established criteria of the ‘void for
vagueness’ doctrine” applicable to criminal laws. 341
U. S., at 231. That approach was demanded, we ex-
plained, “in view of the grave nature of deportation,”
ibid.—a “drastic measure,” often amounting to lifelong
“banishment or exile,” ibid. (quoting Fong Haw Tan v.
Phelan, 333 U. S. 6, 10 (1948)).
Nothing in the ensuing years calls that reasoning into
question. To the contrary, this Court has reiterated that
deportation is “a particularly severe penalty,” which may
be of greater concern to a convicted alien than “any poten-
tial jail sentence.” Jae Lee v. United States, 582 U. S. ___,
___ (2017) (slip op., at 11) (quoting Padilla v. Kentucky,
559 U. S. 356, 365, 368 (2010)). And we have observed
that as federal immigration law increasingly hinged de-
portation orders on prior convictions, removal proceedings
became ever more “intimately related to the criminal
process.” Chaidez v. United States, 568 U. S. 342, 352
(2013) (quoting Padilla, 559 U. S., at 365). What follows,
as Jordan recognized, is the use of the same standard in
the two settings.
For that reason, the Government cannot take refuge in a
more permissive form of the void-for-vagueness doctrine
than the one Johnson employed. To salvage §16’s residual
clause, even for use in immigration hearings, the Gov-
ernment must instead persuade us that it is materially
clearer than its now-invalidated ACCA counterpart.
That is the issue we next address, as guided by Johnson’s
analysis.
III
Johnson is a straightforward decision, with equally
straightforward application here. Its principal section
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Opinion of the Court
begins as follows: “Two features of [ACCA’s] residual
clause conspire to make it unconstitutionally vague.” 576
U. S., at ___ (slip op., at 5). The opinion then identifies
each of those features and explains how their joinder
produced “hopeless indeterminacy,” inconsistent with due
process. Id., at ___ (slip op., at 7). And with that reason-
ing, Johnson effectively resolved the case now before us.
For §16’s residual clause has the same two features as
ACCA’s, combined in the same constitutionally problem-
atic way. Consider those two, just as Johnson described
them:
“In the first place,” Johnson explained, ACCA’s residual
clause created “grave uncertainty about how to estimate
the risk posed by a crime” because it “tie[d] the judicial
assessment of risk” to a hypothesis about the crime’s
“ordinary case.” Id., at ___ (slip op., at 5). Under the
clause, a court focused on neither the “real-world facts”
nor the bare “statutory elements” of an offense. Ibid.
Instead, a court was supposed to “imagine” an “idealized
ordinary case of the crime”—or otherwise put, the court
had to identify the “kind of conduct the ‘ordinary case’ of a
crime involves.” Ibid. But how, Johnson asked, should a
court figure that out? By using a “statistical analysis of
the state reporter? A survey? Expert evidence? Google?
Gut instinct?” Ibid. (internal quotation marks omitted).
ACCA provided no guidance, rendering judicial accounts of
the “ordinary case” wholly “speculative.” Ibid. Johnson
gave as its prime example the crime of attempted bur-
glary. One judge, contemplating the “ordinary case,” would
imagine the “violent encounter” apt to ensue when a
“would-be burglar [was] spotted by a police officer [or]
private security guard.” Id., at ___–___ (slip op., at 5–6).
Another judge would conclude that “any confrontation”
was more “likely to consist of [an observer’s] yelling ‘Who’s
there?’ . . . and the burglar’s running away.” Id., at ___
(slip op., at 6). But how could either judge really know?
8 SESSIONS v. DIMAYA
Opinion of the Court
“The residual clause,” Johnson summarized, “offer[ed] no
reliable way” to discern what the ordinary version of any
offense looked like. Ibid. And without that, no one could
tell how much risk the offense generally posed.
Compounding that first uncertainty, Johnson continued,
was a second: ACCA’s residual clause left unclear what
threshold level of risk made any given crime a “violent
felony.” See ibid. The Court emphasized that this feature
alone would not have violated the void-for-vagueness
doctrine: Many perfectly constitutional statutes use im-
precise terms like “serious potential risk” (as in ACCA’s
residual clause) or “substantial risk” (as in §16’s). The
problem came from layering such a standard on top of the
requisite “ordinary case” inquiry. As the Court explained:
“[W]e do not doubt the constitutionality of laws that
call for the application of a qualitative standard such
as ‘substantial risk’ to real-world conduct; the law is
full of instances where a man’s fate depends on his es-
timating rightly . . . some matter of degree[.] The re-
sidual clause, however, requires application of the ‘se-
rious potential risk’ standard to an idealized ordinary
case of the crime. Because the elements necessary to
determine the imaginary ideal are uncertain[,] this
abstract inquiry offers significantly less predictability
than one that deals with the actual . . . facts.” Id., at
___ (slip op., at 12) (some internal quotation marks,
citations, and alterations omitted).
So much less predictability, in fact, that ACCA’s residual
clause could not pass constitutional muster. As the Court
again put the point, in the punch line of its decision: “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 a violent felony, the
residual clause” violates the guarantee of due process. Id.,
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Opinion of the Court
at ___ (slip op., at 6).3
Section 16’s residual clause violates that promise in just
the same way. To begin where Johnson did, §16(b) also
calls for a court to identify a crime’s “ordinary case” in
order to measure the crime’s risk. The Government explic-
itly acknowledges that point here. See Brief for Petitioner
11 (“Section 16(b), like [ACCA’s] residual clause, requires
a court to assess the risk posed by the ordinary case of a
particular offense”). And indeed, the Government’s brief-
ing in Johnson warned us about that likeness, observing
that §16(b) would be “equally susceptible to [an] objection”
that focused on the problems of positing a crime’s ordinary
case. Supp. Brief for Respondent, O. T. 2014, No. 13–
7120, pp. 22–23. Nothing in §16(b) helps courts to perform
that task, just as nothing in ACCA did. We can as well
repeat here what we asked in Johnson: How does one go
about divining the conduct entailed in a crime’s ordinary
case? Statistical analyses? Surveys? Experts? Google?
Gut instinct? See Johnson, 576 U. S., at ___ (slip op., at
5); supra, at 7; post, at 16–17 (GORSUCH, J., concurring in
——————
3 Johnson also anticipated and rejected a significant aspect of JUSTICE
THOMAS’s dissent in this case. According to JUSTICE THOMAS, a court
may not invalidate a statute for vagueness if it is clear in any of its
applications—as he thinks is true of completed burglary, which is the
offense Dimaya committed. See post, at 16–20. But as an initial
matter, Johnson explained that supposedly easy applications of the
residual clause might not be “so easy after all.” 576 U. S., at ___–___
(slip op., at 10–11). The crime of completed burglary at issue here
illustrates that point forcefully. See id., at ___ (slip op., at 6) (asking
whether “an ordinary burglar invade[s] an occupied home by night or
an unoccupied home by day”); Dimaya v. Lynch, 803 F. 3d 1110, 1116,
n. 7 (CA9 2015) (noting that only about seven percent of burglaries
actually involve violence); Cal. Penal Code Ann. §§459, 460 (West 2010)
(sweeping so broadly as to cover even dishonest door-to-door salesmen).
And still more fundamentally, Johnson made clear that our decisions
“squarely contradict the theory that a vague provision is constitutional
merely because there is some conduct that clearly falls within the
provision’s grasp.” 576 U. S., at ___ (slip op., at 11).
10 SESSIONS v. DIMAYA
Opinion of the Court
part and concurring in judgment). And we can as well
reiterate Johnson’s example: In the ordinary case of at-
tempted burglary, is the would-be culprit spotted and
confronted, or scared off by a yell? See post, at 16 (opinion
of GORSUCH, J.) (offering other knotty examples). Once
again, the questions have no good answers; the “ordinary
case” remains, as Johnson described it, an excessively
“speculative,” essentially inscrutable thing. 576 U. S.,
at ___ (slip op., at 5); accord post, at 27 (THOMAS, J.,
dissenting).4
And §16(b) also possesses the second fatal feature of
ACCA’s residual clause: uncertainty about the level of risk
that makes a crime “violent.” In ACCA, that threshold
was “serious potential risk”; in §16(b), it is “substantial
risk.” See supra, at 2, 4. But the Government does not
argue that the latter formulation is any more determinate
than the former, and for good reason. As THE CHIEF
JUSTICE’s valiant attempt to do so shows, that would be
slicing the baloney mighty thin. See post, at 5–6 (dissent-
ing opinion). And indeed, Johnson as much as equated the
two phrases: Return to the block quote above, and note
how Johnson—as though anticipating this case—refers to
them interchangeably, as alike examples of imprecise
“qualitative standard[s].” See supra, at 8; 576 U. S., at ___
(slip op., at 12). Once again, the point is not that such a
non-numeric standard is alone problematic: In Johnson’s
words, “we do not doubt” the constitutionality of applying
——————
4 THE CHIEF JUSTICE’s dissent makes light of the difficulty of identify-
ing a crime’s ordinary case. In a single footnote, THE CHIEF JUSTICE
portrays that task as no big deal: Just eliminate the “atypical” cases,
and (presto!) the crime’s nature and risk are revealed. See post, at 5,
n. 1. That rosy view—at complete odds with Johnson—underlies his
whole dissent (and especially, his analysis of how §16(b) applies to
particular offenses, see post, at 7–10). In effect, THE CHIEF JUSTICE is
able to conclude that §16(b) can survive Johnson only by refusing to
acknowledge one of the two core insights of that decision.
Cite as: 584 U. S. ____ (2018) 11
Opinion of the Court
§16(b)’s “substantial risk [standard] to real-world con-
duct.” Id., at ___ (slip op., at 12) (internal quotation marks
omitted). The difficulty comes, in §16’s residual clause
just as in ACCA’s, from applying such a standard to “a
judge-imagined abstraction”—i.e., “an idealized ordinary
case of the crime.” Id., at ___, ___ (slip op., at 6, 12). It is
then that the standard ceases to work in a way consistent
with due process.
In sum, §16(b) has the same “[t]wo features” that “con-
spire[d] to make [ACCA’s residual clause] unconstitution-
ally vague.” Id., at ___ (slip op., at 5). It too “requires a
court to picture the kind of conduct that the crime involves
in ‘the ordinary case,’ and to judge whether that abstrac-
tion presents” some not-well-specified-yet-sufficiently-
large degree of risk. Id., at ___ (slip op., at 4). The result
is that §16(b) produces, just as ACCA’s residual clause did,
“more unpredictability and arbitrariness than the Due
Process Clause tolerates.” Id., at ___ (slip op., at 6).
IV
The Government and dissents offer two fundamentally
different accounts of how §16(b) can escape unscathed
from our decision in Johnson. JUSTICE THOMAS accepts
that the ordinary-case inquiry makes §16(b) “impossible to
apply.” Post, at 27. His solution is to overthrow our his-
toric understanding of the statute: We should now read
§16(b), he says, to ask about the risk posed by a particular
defendant’s particular conduct. In contrast, the Govern-
ment, joined by THE CHIEF JUSTICE, accepts that §16(b),
as long interpreted, demands a categorical approach,
rather than a case-specific one. They argue only that
“distinctive textual features” of §16’s residual clause make
applying it “more predictable” than its ACCA counter-
part. Brief for Petitioner 28, 29. We disagree with both
arguments.
12 SESSIONS v. DIMAYA
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Opinion of K Court
AGAN, J.
A
The essentials of JUSTICE THOMAS’s position go as fol-
lows. Section 16(b), he says, cannot have one meaning,
but could have one of two others. See post, at 27. The
provision cannot demand an inquiry merely into the ele-
ments of a crime, because that is the province of §16(a).
See supra, at 2 (setting out §16(a)’s text). But that still
leaves a pair of options: the categorical, ordinary-case
approach and the “underlying-conduct approach,” which
asks about the specific way in which a defendant commit-
ted a crime. Post, at 25. According to JUSTICE THOMAS,
each option is textually viable (although he gives a slight
nod to the latter based on §16(b)’s use of the word “in-
volves”). See post, at 24–26. What tips the scales is that
only one—the conduct approach—is at all “workable.”
Post, at 27. The difficulties of the ordinary-case inquiry,
JUSTICE THOMAS rightly observes, underlie this Court’s
view that §16(b) is too vague. So abandon that inquiry,
JUSTICE THOMAS urges. After all, he reasons, it is the
Court’s “plain duty,” under the constitutional avoidance
canon, to adopt any reasonable construction of a statute
that escapes constitutional problems. Post, at 28–29
(quoting United States ex rel. Attorney General v. Dela-
ware & Hudson Co., 213 U. S. 366, 407 (1909)).
For anyone who has read Johnson, that argument will
ring a bell. The dissent there issued the same invitation,
based on much the same reasoning, to jettison the categor-
ical approach in residual-clause cases. 576 U. S., at ___–
___ (slip op., at 9–13) (opinion of ALITO, J.). The Court
declined to do so. It first noted that the Government had
not asked us to switch to a fact-based inquiry. It then
observed that the Court “had good reasons” for originally
adopting the categorical approach, based partly on ACCA’s
text (which, by the way, uses the word “involves” identi-
cally) and partly on the “utter impracticability” of the alter-
native. Id., at ___ (slip op., at 13) (majority opinion). “The
Cite as: 584 U. S. ____ (2018) 13
the
Opinion of K Court
AGAN, J.
only plausible interpretation” of ACCA’s residual clause,
we concluded, “requires use of the categorical approach”—
even if that approach could not in the end satisfy constitu-
tional standards. Ibid. (internal quotation marks and
alteration omitted).
The same is true here—except more so. To begin where
Johnson did, the Government once again “has not asked
us to abandon the categorical approach in residual-clause
cases.” Ibid. To the contrary, and as already noted, the
Government has conceded at every step the correctness of
that statutory construction. See supra, at 9. And this
time, the Government’s decision is even more noteworthy
than before—precisely because the Johnson dissent laid
out the opposite view, presenting it in prepackaged form
for the Government to take off the shelf and use in the
§16(b) context. Of course, we are not foreclosed from going
down JUSTICE THOMAS’s path just because the Govern-
ment has not done so. But we find it significant that the
Government cannot bring itself to say that the fact-based
approach JUSTICE THOMAS proposes is a tenable interpre-
tation of §16’s residual clause.
Perhaps one reason for the Government’s reluctance is
that such an approach would generate its own constitu-
tional questions. As JUSTICE THOMAS relates, post, at 22,
28, this Court adopted the categorical approach in part to
“avoid[ ] the Sixth Amendment concerns that would arise
from sentencing courts’ making findings of fact that
properly belong to juries.” Descamps v. United States, 570
U. S. 254, 267 (2013). JUSTICE THOMAS thinks that issue
need not detain us here because “the right of trial by jury
ha[s] no application in a removal proceeding.” Post, at 28
(internal quotation marks omitted). But although this
particular case involves removal, §16(b) is a criminal
statute, with criminal sentencing consequences. See
supra, at 2. And this Court has held (it could hardly have
done otherwise) that “we must interpret the statute con-
14 SESSIONS v. DIMAYA
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Opinion of K Court
AGAN, J.
sistently, whether we encounter its application in a crimi-
nal or noncriminal context.” Leocal, 543 U. S., at 12, n. 8.
So JUSTICE THOMAS’s suggestion would merely ping-pong
us from one constitutional issue to another. And that
means the avoidance canon cannot serve, as he would like,
as the interpretive tie breaker.
In any event, §16(b)’s text creates no draw: Best read, it
demands a categorical approach. Our decisions have
consistently understood language in the residual clauses
of both ACCA and §16 to refer to “the statute of conviction,
not to the facts of each defendant’s conduct.” Taylor v.
United States, 495 U. S. 575, 601 (1990); see Leocal, 543
U. S., at 7 (Section 16 “directs our focus to the ‘offense’ of
conviction . . . rather than to the particular facts”). Simple
references to a “conviction,” “felony,” or “offense,” we have
stated, are “read naturally” to denote the “crime as gener-
ally committed.” Nijhawan v. Holder, 557 U. S. 29, 34
(2009); see Leocal, 543 U. S., at 7; Johnson, 576 U. S., at
___ (slip op., at 13). And the words “by its nature” in
§16(b) make that meaning all the clearer. The statute,
recall, directs courts to consider whether an offense, by its
nature, poses the requisite risk of force. An offense’s
“nature” means its “normal and characteristic quality.”
Webster’s Third New International Dictionary 1507
(2002). So §16(b) tells courts to figure out what an offense
normally—or, as we have repeatedly said, “ordinarily”—
entails, not what happened to occur on one occasion. And
the same conclusion follows if we pay attention to lan-
guage that is missing from §16(b). As we have observed in
the ACCA context, the absence of terms alluding to a
crime’s circumstances, or its commission, makes a fact-
based interpretation an uncomfortable fit. See Descamps,
570 U. S., at 267. If Congress had wanted judges to look
into a felon’s actual conduct, “it presumably would have
said so; other statutes, in other contexts, speak in just that
Cite as: 584 U. S. ____ (2018) 15
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Opinion of K Court
AGAN, J.
way.” Id., at 267–268.5 The upshot of all this textual
evidence is that §16’s residual clause—like ACCA’s, except
still more plainly—has no “plausible” fact-based reading.
Johnson, 576 U. S., at ___ (slip op., at 13).
And finally, the “utter impracticability”—and associated
inequities—of such an interpretation is as great in the one
statute as in the other. Ibid. This Court has often de-
scribed the daunting difficulties of accurately “recon-
struct[ing],” often many years later, “the conduct underly-
ing [a] conviction.” Ibid.; Descamps, 570 U. S., at 270;
Taylor, 495 U. S., at 601–602. According to JUSTICE
THOMAS, we need not worry here because immigration
judges have some special factfinding talent, or at least
experience, that would mitigate the risk of error attaching
to that endeavor in federal courts. See post, at 30. But we
cannot see putting so much weight on the superior fact-
finding prowess of (notoriously overburdened) immigration
judges. And as we have said before, §16(b) is a criminal
statute with applications outside the immigration context.
See supra, at 2, 13. Once again, then, we have no ground
for discovering a novel interpretation of §16(b) that would
remove us from the dictates of Johnson.
——————
5 For example, in United States v. Hayes, 555 U. S. 415 (2009), this
Court held that a firearms statute referring to former crimes as “com-
mitted by” specified persons requires courts to consider underlying
facts. Id., at 421. And in Nijhawan v. Holder, 557 U. S. 29 (2009), the
Court similarly adopted a non-categorical interpretation of one of the
aggravated felonies listed in the INA because of the phrase, appended
to the named offense, “in which the loss to the victim or victims exceeds
$10,000.” Id., at 34, 36 (emphasis deleted). JUSTICE THOMAS suggests
that Nijhawan rejected the relevance of our ACCA precedents in
interpreting the INA’s aggravated-felony list—including its incorpora-
tion of §16(b). Post, at 29–30. But that misreads the decision. In
Nijhawan, we considered an item on the INA’s list that looks nothing
like ACCA, and we concluded—no surprise here—that our ACCA
decisions did not offer a useful guide. As to items on the INA’s list that
do mirror ACCA, the opposite conclusion of course follows.
16 SESSIONS v. DIMAYA
Opinion of the Court
B
Agreeing that is so, the Government (joined by THE
CHIEF JUSTICE) takes a narrower path to the same desired
result. It points to three textual discrepancies between
ACCA’s residual clause and §16(b), and argues that they
make §16(b) significantly easier to apply. But each turns
out to be the proverbial distinction without a difference.
None relates to the pair of features—the ordinary-case
inquiry and a hazy risk threshold—that Johnson found to
produce impermissible vagueness. And none otherwise
affects the determinacy of the statutory inquiry into
whether a prior conviction is for a violent crime. That is
why, contrary to the Government’s final argument, the
experience of applying both statutes has generated confu-
sion and division among lower courts.
1
The Government first—and foremost—relies on §16(b)’s
express requirement (absent from ACCA) that the risk
arise from acts taken “in the course of committing the
offense.” Brief for Petitioner 31. (THE CHIEF JUSTICE’s
dissent echoes much of this argument. See post, at 6–7.)
Because of that “temporal restriction,” a court applying
§16(b) may not “consider risks arising after” the offense’s
commission is over. Ibid. In the Government’s view,
§16(b)’s text thereby demands a “significantly more fo-
cused inquiry” than did ACCA’s residual clause. Id., at 32.
To assess that claim, start with the meaning of §16(b)’s
“in the course of ” language. That phrase, understood in
the normal way, includes the conduct occurring through-
out a crime’s commission—not just the conduct sufficient
to satisfy the offense’s formal elements. The Government
agrees with that construction, explaining that the words
“in the course of ” sweep in everything that happens while
a crime continues. See Tr. of Oral Arg. 57–58 (Oct. 2,
2017) (illustrating that idea with reference to conspiracy,
Cite as: 584 U. S. ____ (2018) 17
Opinion of the Court
burglary, kidnapping, and escape from prison). So, for
example, conspiracy may be a crime of violence under
§16(b) because of the risk of force while the conspiracy is
ongoing (i.e., “in the course of ” the conspiracy); it is irrele-
vant that conspiracy’s elements are met as soon as the
participants have made an agreement. See ibid.; United
States v. Doe, 49 F. 3d 859, 866 (CA2 1995). Similarly,
and closer to home, burglary may be a crime of violence
under §16(b) because of the prospects of an encounter
while the burglar remains in a building (i.e., “in the course
of ” the burglary); it does not matter that the elements of
the crime are met at the precise moment of his entry. See
Tr. of Oral Arg. 57–58 (Oct. 2, 2017); James, 550 U. S., at
203. In other words, a court applying §16(b) gets to con-
sider everything that is likely to take place for as long as a
crime is being committed.
Because that is so, §16(b)’s “in the course of ” language
does little to narrow or focus the statutory inquiry. All
that the phrase excludes is a court’s ability to consider the
risk that force will be used after the crime has entirely
concluded—so, for example, after the conspiracy has dis-
solved or the burglar has left the building. We can con-
struct law-school-type hypotheticals fitting that fact pat-
tern—say, a burglar who constructs a booby trap that
later knocks out the homeowner. But such imaginative
forays cannot realistically affect a court’s view of the
ordinary case of a crime, which is all that matters under
the statute. See supra, at 2–3, 7. In the ordinary case, the
riskiness of a crime arises from events occurring during its
commission, not events occurring later. So with or with-
out §16(b)’s explicit temporal language, a court applying
the section would do the same thing—ask what usually
happens when a crime goes down.
And that is just what courts did when applying ACCA’s
residual clause—and for the same reason. True, that
clause lacked an express temporal limit. But not a single
18 SESSIONS v. DIMAYA
Opinion of the Court
one of this Court’s ACCA decisions turned on conduct that
might occur after a crime’s commission; instead, each
hinged on the risk arising from events that could happen
while the crime was ongoing. See, e.g., Sykes v. United
States, 564 U. S. 1, 10 (2011) (assessing the risks attached
to the “confrontations that initiate and terminate” vehicle
flight, along with “intervening” events); Chambers v.
United States, 555 U. S. 122, 128 (2009) (rejecting the
Government’s argument that violent incidents “occur[ring]
long after” a person unlawfully failed to report to prison
rendered that crime a violent felony). Nor could those
decisions have done otherwise, given the statute’s concern
with the ordinary (rather than the outlandish) case. Once
again, the riskiness of a crime in the ordinary case de-
pends on the acts taken during—not after—its commis-
sion. Thus, the analyses under ACCA’s residual clause
and §16(b) coincide.
The upshot is that the phrase “in the course of ” makes
no difference as to either outcome or clarity. Every offense
that could have fallen within ACCA’s residual clause
might equally fall within §16(b). And the difficulty of
deciding whether it does so remains just as intractable.
Indeed, we cannot think of a single federal crime whose
treatment becomes more obvious under §16(b) than under
ACCA because of the words “in the course of.”6 The
——————
6 In response to repeated questioning at two oral arguments, the Gov-
ernment proposed one (and only one) such crime—but we disagree that
§16(b)’s temporal language would aid in its analysis. According to the
Government, possession of a short-barreled shotgun could count as
violent under ACCA but not under §16(b) because shooting the gun is
“not in the course of committing the crime of possession.” Tr. of Oral
Arg. 59–60 (Oct. 2, 2017); see Tr. of Oral Arg. 6–7 (Jan. 17, 2017); Brief
for Petitioner 32–34. That is just wrong: When a criminal shoots a gun,
he does so while (“in the course of ”) possessing it (except perhaps in
some physics-defying fantasy world). What makes the offense difficult
to classify as violent is something different: that while some people use
the short-barreled shotguns they possess to commit murder, others
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Opinion of the Court
phrase, then, cannot cure the statutory indeterminacy
Johnson described.
Second, the Government (and again, THE CHIEF
JUSTICE’s dissent, see post, at 6) observes that §16(b)
focuses on the risk of “physical force” whereas ACCA’s
residual clause asked about the risk of “physical injury.”
The §16(b) inquiry, the Government says, “trains solely”
on the conduct typically involved in a crime. Brief for
Petitioner 36. By contrast, the Government continues,
ACCA’s residual clause required a second inquiry: After
describing the ordinary criminal’s conduct, a court had to
“speculate about a chain of causation that could possibly
result in a victim’s injury.” Ibid. The Government’s con-
clusion is that the §16(b) inquiry is “more specific.” Ibid.
But once more, we struggle to see how that statutory
distinction would matter. To begin with, the first of the
Government’s two steps—defining the conduct in the
ordinary case—is almost always the difficult part. Once
that is accomplished, the assessment of consequences
tends to follow as a matter of course. So, for example, if a
crime is likely enough to lead to a shooting, it will also be
likely enough to lead to an injury. And still more im-
portant, §16(b) involves two steps as well—and essentially
the same ones. In interpreting statutes like §16(b), this
Court has made clear that “physical force” means “force
——————
merely store them in a nearby firearms cabinet—and it is hard to settle
which is the more likely scenario. Compare Johnson, 576 U. S., at ___–
___ (slip op., at 19–20) (ALITO, J., dissenting) (“It is fanciful to assume
that a person who [unlawfully possesses] a notoriously dangerous
weapon is unlikely to use that weapon in violent ways”), with id., at ___
(slip op., at 4) (THOMAS, J., concurring) (Unlawful possession of a short-
barreled shotgun “takes place in a variety of ways . . . many, perhaps
most, of which do not involve likely accompanying violence” (internal
quotation marks omitted)). But contrary to THE CHIEF JUSTICE’s
suggestion, see post, at 7–8 (which, again, is tied to his disregard of the
ordinary-case inquiry, see supra, at 10, n. 4), that issue must be settled
no less under §16(b) than under ACCA.
20 SESSIONS v. DIMAYA
Opinion of the Court
capable of causing physical pain or injury.” Johnson v.
United States, 559 U. S. 133, 140 (2010) (defining the term
for purposes of deciding what counts as a “violent” crime).
So under §16(b) too, a court must not only identify the
conduct typically involved in a crime, but also gauge its
potential consequences. Or said a bit differently, evaluat-
ing the risk of “physical force” itself entails considering the
risk of “physical injury.” For those reasons, the
force/injury distinction is unlikely to affect a court’s analy-
sis of whether a crime qualifies as violent. All the same
crimes might—or, then again, might not—satisfy both
requirements. Accordingly, this variance in wording
cannot make ACCA’s residual clause vague and §16(b) not.
Third, the Government briefly notes that §16(b), unlike
ACCA’s residual clause, is not preceded by a “confusing
list of exemplar crimes.” Brief for Petitioner 38. (THE
CHIEF JUSTICE’s dissent reiterates this argument, with
some additional references to our caselaw. See post, at
10–12.) Here, the Government is referring to the offenses
ACCA designated as violent felonies independently of the
residual clause (i.e., burglary, arson, extortion, and use of
explosives). See supra, at 4. According to the Govern-
ment, those crimes provided “contradictory and opaque
indications” of what non-specified offenses should also
count as violent. Brief for Petitioner 38. Because §16(b)
lacks any such enumerated crimes, the Government con-
cludes, it avoids the vagueness of ACCA’s residual clause.
We readily accept a part of that argument. This Court
for several years looked to ACCA’s listed crimes for help in
giving the residual clause meaning. See, e.g., Begay v.
United States, 553 U. S. 137, 142 (2008); James, 550 U. S.,
at 203. But to no avail. As the Government relates (and
Johnson explained), the enumerated crimes were them-
selves too varied to provide such assistance. See Brief for
Petitioner 38–40; 576 U. S., at ___ (slip op., at 12). Trying
to reconcile them with each other, and then compare them
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Opinion of the Court
to whatever unlisted crime was at issue, drove many a
judge a little batty. And more to the point, the endeavor
failed to bring any certainty to the residual clause’s appli-
cation. See Brief for Petitioner 38–40.
But the Government’s conclusion does not follow. To
say that ACCA’s listed crimes failed to resolve the residual
clause’s vagueness is hardly to say they caused the prob-
lem. Had they done so, Johnson would not have needed to
strike down the clause. It could simply have instructed
courts to give up on trying to interpret the clause by refer-
ence to the enumerated offenses. (Contrary to THE CHIEF
JUSTICE’s suggestion, see post, at 12, discarding an inter-
pretive tool once it is found not to actually aid in interpre-
tation hardly “expand[s]” the scope of a statute.) That
Johnson went so much further—invalidating a statutory
provision rather than construing it independently of an-
other—demonstrates that the list of crimes was not the
culprit. And indeed, Johnson explicitly said as much. As
described earlier, Johnson found the residual clause’s
vagueness to reside in just “two” of its features: the
ordinary-case requirement and a fuzzy risk standard. See
576 U. S., at ___–___ (slip op., at 5–6); supra, at 7–8.
Strip away the enumerated crimes—as Congress did in
§16(b)—and those dual flaws yet remain. And ditto the
textual indeterminacy that flows from them.
2
Faced with the two clauses’ linguistic similarity, the
Government relies significantly on an argument rooted in
judicial experience. Our opinion in Johnson, the Govern-
ment notes, spoke of the longstanding “trouble” that this
Court and others had in “making sense of [ACCA’s] resid-
ual clause.” 576 U. S., at ___ (slip op., at 9); see Brief for
Petitioner 45. According to the Government, §16(b) has
not produced “comparable difficulties.” Id., at 46. Lower
courts, the Government claims, have divided less often
22 SESSIONS v. DIMAYA
Opinion of the Court
about the provision’s meaning, and as a result this Court
granted certiorari on “only a single Section 16(b) case”
before this one. Ibid.7 “The most likely explanation,” the
Government concludes, is that “Section 16(b) is clearer”
than its ACCA counterpart. Id., at 47.
But in fact, a host of issues respecting §16(b)’s applica-
tion to specific crimes divide the federal appellate courts.
Does car burglary qualify as a violent felony under §16(b)?
Some courts say yes, another says no.8 What of statutory
rape? Once again, the Circuits part ways.9 How about
evading arrest? The decisions point in different direc-
tions.10 Residential trespass? The same is true.11 Those
examples do not exhaust the current catalogue of Circuit
conflicts concerning §16(b)’s application. See Brief for
——————
7 And, THE CHIEF JUSTICE emphasizes, we decided that one unani-
mously! See post, at 3 (discussing Leocal v. Ashcroft, 543 U. S. 1(2004)). But one simple application does not a clear statute make. As
we put the point in Johnson: Our decisions “squarely contradict the
theory that a vague provision is constitutional merely because there is
some conduct that clearly falls within the provision’s grasp.” 576 U. S.,
at ___ (slip op., at 11); see supra, at 9, n. 4.
8 Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 784–785
(CA5 2012) (per curiam) (yes, it does), and United States v. Guzman-
Landeros, 207 F. 3d 1034, 1035 (CA8 2000) (per curiam) (same), with
Sareang Ye v. INS, 214 F. 3d 1128, 1133–1134 (CA9 2000) (no, it does
not).
9 Compare Aguiar v. Gonzales, 438 F. 3d 86, 89–90 (CA1 2006) (statu-
tory rape involves a substantial risk of force); Chery v. Ashcroft, 347
F. 3d 404, 408–409 (CA2 2003) (same); and United States v. Velazquez-
Overa, 100 F. 3d 418, 422 (CA5 1996) (same), with Valencia v. Gonza-
les, 439 F. 3d 1046, 1052 (CA9 2006) (statutory rape does not involve
such a risk).
10 Compare Dixon v. Attorney Gen., 768 F. 3d 1339, 1343–1346 (CA11
2014) (holding that one such statute falls under §16(b)), with Flores-
Lopez v. Holder, 685 F. 3d 857, 863–865 (CA9 2012) (holding that
another does not).
11 Compare United States v. Venegas-Ornelas, 348 F. 3d 1273, 1277–
1278 (CA10 2003) (residential trespass is a crime of violence), with
Zivkovic v. Holder, 724 F. 3d 894, 906 (CA7 2013) (it is not).
Cite as: 584 U. S. ____ (2018) 23
Opinion of the Court
National Immigration Project of the National Lawyers
Guild et al. as Amici Curiae 7–18 (citing divided appellate
decisions as to the unauthorized use of a vehicle, firearms
possession, and abduction). And that roster would just
expand with time, mainly because, as Johnson explained,
precious few crimes (of the thousands that fill the statute
books) have an obvious, non-speculative—and therefore
undisputed—“ordinary case.” See 576 U. S., at ___–___
(slip op., at 5–6).
Nor does this Court’s prior handling of §16(b) cases
support the Government’s argument. To be sure, we have
heard oral argument in only two cases arising from §16(b)
(including this one), as compared with five involving
ACCA’s residual clause (including Johnson).12 But while
some of those ACCA suits were pending before us, we
received a number of petitions for certiorari presenting
related issues in the §16(b) context. And after issuing the
relevant ACCA decisions, we vacated the judgments in
those §16(b) cases and remanded them for further consid-
eration.13 That we disposed of the ACCA and §16(b) peti-
——————
12 From all we can tell—and all the Government has told us, see Brief
for Petitioner 45–52—lower courts have also decided many fewer cases
involving §16(b) than ACCA’s residual clause. That disparity likely
reflects the Government’s lesser need to rely on §16(b). That provision
is mainly employed (as here) in the immigration context, to establish an
“aggravated felony” requiring deportation. See supra, at 2. But immi-
gration law offers many other ways to achieve that result. The INA
lists 80 or so crimes that count as aggravated felonies; only if a convic-
tion is not for one of those specified offenses need the Government
resort to §16(b) (or another catch-all provision). See Luna Torres v.
Lynch, 578 U. S. ___, ___ (2016) (slip op., at 2). By contrast, ACCA
enumerates only four crimes as a basis for enhancing sentences; the
Government therefore had reason to use the statute’s residual clause
more often.
13 See, e.g., Amendariz-Moreno v. United States, 555 U. S. 1133 (2009)
(vacating and remanding for reconsideration in light of Begay v. United
States, 553 U. S. 137 (2008), and Chambers v. United States, 555 U. S.
122 (2009)); Castillo-Lucio v. United States, 555 U. S. 1133 (2009)
24 SESSIONS v. DIMAYA
Opinion of the Court
tions in that order, rather than its opposite, provides no
reason to disregard the indeterminacy that §16(b) shares
with ACCA’s residual clause.
And of course, this Court’s experience in deciding ACCA
cases only supports the conclusion that §16(b) is too vague.
For that record reveals that a statute with all the same
hallmarks as §16(b) could not be applied with the predict-
ability the Constitution demands. See id., at ___–___ (slip
op., at 6–9); supra, at 6–9. The Government would con-
demn us to repeat the past—to rerun the old ACCA tape,
as though we remembered nothing from its first showing.
But why should we disregard a lesson so hard learned?
“Insanity,” Justice Scalia wrote in the last ACCA residual
clause case before Johnson, “is doing the same thing over
and over again, but expecting different results.” Sykes,
564 U. S., at 28 (dissenting opinion). We abandoned that
lunatic practice in Johnson and see no reason to start it
again.
V
Johnson tells us how to resolve this case. That decision
held that “[t]wo features of [ACCA’s] residual clause con-
spire[d] to make it unconstitutionally vague.” 576 U. S.,
at ___ (slip op., at 5). Because the clause had both an
ordinary-case requirement and an ill-defined risk thresh-
old, it necessarily “devolv[ed] into guesswork and intui-
tion,” invited arbitrary enforcement, and failed to provide
fair notice. Id., at ___ (slip op., at 8). Section 16(b) pos-
sesses the exact same two features. And none of the minor
linguistic disparities in the statutes makes any real differ-
ence. So just like ACCA’s residual clause, §16(b) “produc-
es more unpredictability and arbitrariness than the Due
Process Clause tolerates.” Id., at ___ (slip op., at 6). We
——————
(same); Addo v. Mukasey, 555 U. S. 1132 (2009) (vacating and remand-
ing in light of Chambers); Serna-Guerra v. Holder, 556 U. S 1279 (2009)
(same); Reyes-Figueroa v. United States, 555 U. S. 1132 (2009) (same).
Cite as: 584 U. S. ____ (2018) 25
Opinion of the Court
accordingly affirm the judgment of the Court of Appeals.
It is so ordered.
Cite as: 584 U. S. ____ (2018) 1
G
Opinion , J.,
ORSUCHof concurring
GORSUCH , J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1498
_________________
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL,
PETITIONER v. JAMES GARCIA DIMAYA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 17, 2018]
JUSTICE GORSUCH, concurring in part and concurring in
the judgment.
Vague laws invite arbitrary power. Before the Revolu­
tion, the crime of treason in English law was so capa­
ciously construed that the mere expression of disfavored
opinions could invite transportation or death. The founders
cited the crown’s abuse of “pretended” crimes like this as
one of their reasons for revolution. See Declaration of
Independence ¶21. Today’s vague laws may not be as
invidious, but they can invite the exercise of arbitrary
power all the same—by leaving the people in the dark
about what the law demands and allowing prosecutors and
courts to make it up.
The law before us today is such a law. Before holding a
lawful permanent resident alien like James Dimaya sub­
ject to removal for having committed a crime, the Immi­
gration and Nationality Act requires a judge to determine
that the ordinary case of the alien’s crime of conviction
involves a substantial risk that physical force may be
used. But what does that mean? Just take the crime at
issue in this case, California burglary, which applies to
everyone from armed home intruders to door-to-door
salesmen peddling shady products. How, on that vast
spectrum, is anyone supposed to locate the ordinary case
and say whether it includes a substantial risk of physical
force? The truth is, no one knows. The law’s silence
2 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
leaves judges to their intuitions and the people to their
fate. In my judgment, the Constitution demands more.
*
I begin with a foundational question. Writing for the
Court in Johnson v. United States, 576 U. S. ___ (2015),
Justice Scalia held the residual clause of the Armed Ca­
reer Criminal Act void for vagueness because it invited
“more unpredictability and arbitrariness” than the Consti­
tution allows. Id., at ___ (slip op., at 6). Because the
residual clause in the statute now before us uses almost
exactly the same language as the residual clause in John-
son, respect for precedent alone would seem to suggest
that both clauses should suffer the same judgment.
But first in Johnson and now again today JUSTICE
THOMAS has questioned whether our vagueness doctrine
can fairly claim roots in the Constitution as originally
understood. See, e.g., post, at 2–6 (dissenting opinion);
Johnson, supra, at ___–___ (opinion concurring in judg­
ment) (slip op., at 6–18). For its part, the Court has yet to
offer a reply. I believe our colleague’s challenge is a seri­
ous and thoughtful one that merits careful attention. At
day’s end, though, it is a challenge to which I find my-
self unable to subscribe. Respectfully, I am persuaded in-
stead that void for vagueness doctrine, at least properly
conceived, serves as a faithful expression of ancient due
process and separation of powers principles the
framers recognized as vital to ordered liberty under our
Constitution.
Consider first the doctrine’s due process underpinnings.
The Fifth and Fourteenth Amendments guarantee that
“life, liberty, or property” may not be taken “without due
process of law.” That means the government generally
may not deprive a person of those rights without affording
him the benefit of (at least) those “customary procedures
to which freemen were entitled by the old law of England.”
Cite as: 584 U. S. ____ (2018) 3
Opinion of GORSUCH, J.
Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 28 (1991)
(Scalia, J., concurring in judgment) (internal quotation
marks omitted). Admittedly, some have suggested that
the Due Process Clause does less work than this, allowing
the government to deprive people of their liberty through
whatever procedures (or lack of them) the government’s
current laws may tolerate. Post, at 3, n. 1 (opinion of
THOMAS, J.) (collecting authorities). But in my view the
weight of the historical evidence shows that the clause
sought to ensure that the people’s rights are never any
less secure against governmental invasion than they were
at common law. Lord Coke took this view of the English
due process guarantee. 1 E. Coke, The Second Part of the
Institutes of the Laws of England 50 (1797). John
Rutledge, our second Chief Justice, explained that Coke’s
teachings were carefully studied and widely adopted by
the framers, becoming “ ‘almost the foundations of our
law.’ ” Klopfer v. North Carolina, 386 U. S. 213, 225
(1967). And many more students of the Constitution
besides—from Justice Story to Justice Scalia—have
agreed that this view best represents the original under­
standing of our own Due Process Clause. See, e.g., Mur-
ray’s Lessee v. Hoboken Land & Improvement Co., 18 How.
272, 277 (1856); 3 J. Story, Commentaries on the Consti­
tution of the United States §1783, p. 661 (1833); Pacific
Mut., supra, at 28–29 (opinion of Scalia, J.); Eberle, Proce­
dural Due Process: The Original Understanding, 4 Const.
Comment. 339, 341 (1987).
Perhaps the most basic of due process’s customary
protections is the demand of fair notice. See Connally v.
General Constr. Co., 269 U. S. 385, 391 (1926); see also
Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542,
543 (2009) (“From the inception of Western culture, fair
notice has been recognized as an essential element of the
rule of law”). Criminal indictments at common law had to
provide “precise and sufficient certainty” about the charges
4 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
involved. 4 W. Blackstone, Commentaries on the Laws
of England 301 (1769) (Blackstone). Unless an “offence
[was] set forth with clearness and certainty,” the indict­
ment risked being held void in court. Id., at 302 (empha­
sis deleted); 2 W. Hawkins, Pleas of the Crown, ch. 25,
§§99, 100, pp. 244–245 (2d ed. 1726) (“[I]t seems to have
been anciently the common practice, where an indictment
appeared to be [in]sufficient, either for its uncertainty or
the want of proper legal words, not to put the defendant to
answer it”).
The same held true in civil cases affecting a person’s
life, liberty, or property. A civil suit began by obtaining a
writ—a detailed and specific form of action asking for
particular relief. Bellia, Article III and the Cause of Ac­
tion, 89 Iowa L. Rev. 777, 784–786 (2004); Subrin, How
Equity Conquered Common Law: The Federal Rules of
Civil Procedure in Historical Perspective, 135 U. Pa. L.
Rev. 909, 914–915 (1987). Because the various civil writs
were clearly defined, English subjects served with one
would know with particularity what legal requirement
they were alleged to have violated and, accordingly, what
would be at issue in court. Id., at 917; Moffitt, Pleadings
in the Age of Settlement, 80 Ind. L. J. 727, 731 (2005).
And a writ risked being held defective if it didn’t provide
fair notice. Goldington v. Bassingburn, Y. B. Trin. 3 Edw.
II, f. 27b (1310) (explaining that it was “the law of the
land” that “no one [could] be taken by surprise” by having
to “answer in court for what [one] has not been warned to
answer”).
The requirement of fair notice applied to statutes too.
Blackstone illustrated the point with a case involving a
statute that made “stealing sheep, or other cattle” a fel-
ony. 1 Blackstone 88 (emphasis deleted). Because the term
“cattle” embraced a good deal more then than it does now
(including wild animals, no less), the court held the stat­
ute failed to provide adequate notice about what it did and
Cite as: 584 U. S. ____ (2018) 5
Opinion of GORSUCH, J.
did not cover—and so the court treated the term “cattle” as
a nullity. Ibid. All of which, Blackstone added, had the
salutary effect of inducing the legislature to reenter the
field and make itself clear by passing a new law extending
the statute to “bulls, cows, oxen,” and more “by name.”
Ibid.This tradition of courts refusing to apply vague statutes
finds parallels in early American practice as well. In The
Enterprise, 8 F. Cas. 732 (No. 4,499) (CC NY 1810), for
example, Justice Livingston found that a statute setting
the circumstances in which a ship may enter a port during
an embargo was too vague to be applied, concluding that
“the court had better pass” the statutory terms by “as
unintelligible and useless” rather than “put on them, at
great uncertainty, a very harsh signification, and one
which the legislature may never have designed.” Id., at
735. In United States v. Sharp, 27 F. Cas. 1041 (No.
16,264) (CC Pa. 1815), Justice Washington confronted a
statute which prohibited seamen from making a “revolt.”
Id., at 1043. But he was unable to determine the meaning
of this provision “by any authority . . . either in the com­
mon, admiralty, or civil law.” Ibid. As a result, he de­
clined to “recommend to the jury, to find the prisoners
guilty of making, or endeavouring to make a revolt, how­
ever strong the evidence may be.” Ibid.1
——————
1 Many state courts also held vague laws ineffectual. See, e.g., State
v. Mann, 2 Ore. 238, 240–241 (1867) (holding statute that prohibited
“gambling devices” was “void” because “the term has no settled and
definite meaning”); Drake v. Drake, 15 N. C. 110, 115 (1833) (explaining
that “if the terms in which [a statute] is couched be so vague as to
convey no definite meaning to those whose duty it is to execute it . . . it
is necessarily inoperative”); McConvill v. Mayor and Aldermen of Jersey
City, 39 N. J. L. 38, 44 (1876) (holding that an ordinance was “bad for
vagueness and uncertainty in the thing forbidden”); State v. Boon, 1
N. C. 103, 105 (1801) (refusing to apply a statute because “no punish­
ment whatever can be inflicted; without using a discretion and indulg­
ing a latitude, which in criminal cases ought never to be allowed a
6 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
Nor was the concern with vague laws confined to the
most serious offenses like capital crimes. Courts refused
to apply vague laws in criminal cases involving relatively
modest penalties. See, e.g., McJunkins v. State, 10 Ind.
140, 145 (1858). They applied the doctrine in civil cases
too. See, e.g., Drake v. Drake, 15 N. C. 110, 115 (1833);
Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg.
173, 177 (Pa. 1842). As one court put it, “all laws” “ought
to be expressed in such a manner as that its meaning may
be unambiguous, and in such language as may be readily
understood by those upon whom it is to operate.”
McConvill v. Mayor and Aldermen of Jersey City, 39
N. J. L. 38, 42 (1876). “ ‘It is impossible . . . to dissent from
the doctrine of Lord Coke, that acts of parliament ought to
be plainly and clearly, and not cunningly and darkly
penned, especially in penal matters.’ ” Id., at 42–43.
These early cases, admittedly, often spoke in terms of
construing vague laws strictly rather than declaring them
void. See, e.g., post, at 4–5 (opinion of THOMAS, J.); John-
son, 576 U. S., at ___–___ (opinion of THOMAS, J.) (slip op.,
at 8–10). But in substance void the law is often exactly
——————
Judge”); Ex parte Jackson, 45 Ark. 158, 164 (1885) (declaring a statutory
prohibition on acts “injurious to the public morals” to be “vague” and
“simply null” (emphasis deleted)); McJunkins v. State, 10 Ind. 140, 145
(1858) (“It would therefore appear that the term public indecency has
no fixed legal meaning—is vague and indefinite, and cannot in itself
imply a definite offense”); Jennings v. State, 16 Ind. 335, 336 (1861)
(“We are of opinion that for want of a proper definition, no act is made
criminal by the terms ‘public indecency,’ employed in the statute”);
Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg. 173, 177 (Pa.
1842) (holding “the language of [shareholder election] legislation so
devoid of certainty” that “no valid election [could have] been held, and
that none can be held without further legislation”); Cheezem v. State, 2
Ind. 149, 150 (1850) (finding statute to “contai[n] no prohibition of any
kind whatever” and thus declaring it “a nullity”); see also Note, Statu­
tory Standards of Personal Conduct: Indefiniteness and Uncertainty as
Violations of Due Process, 38 Harv. L. Rev. 963, 964, n. 4 (1925) (col­
lecting cases).
Cite as: 584 U. S. ____ (2018) 7
Opinion of GORSUCH, J.
what these courts did: rather than try to construe or in­
terpret the statute before them, judges frequently held the
law simply too vague to apply. Blackstone, for example,
did not suggest the court in his illustration should have
given a narrowing construction to the term “cattle,” but
argued against giving it any effect at all. 1 Blackstone 88;
see also Scalia, Assorted Canards of Contemporary Legal
Analysis, 40 Case W. Res. L. Rev. 581, 582 (1989) (“I doubt
. . . that any modern court would go to the lengths de­
scribed by Blackstone in its application of the rule that
penal statutes are to be strictly construed”); Note, Indefi­
nite Criteria of Definiteness in Statutes, 45 Harv. L. Rev.
160, n. 3 (1931) (explaining that “since strict construction,
in effect, nullified ambiguous provisions, it was but a short
step to declaring them void ab initio”); supra, at 5, n. 1
(state courts holding vague statutory terms “void” or
“null”).
What history suggests, the structure of the Constitution
confirms. Many of the Constitution’s other provisions
presuppose and depend on the existence of reasonably
clear laws. Take the Fourth Amendment’s requirement
that arrest warrants must be supported by probable cause,
and consider what would be left of that requirement if the
alleged crime had no meaningful boundaries. Or take the
Sixth Amendment’s mandate that a defendant must be
informed of the accusations against him and allowed to
bring witnesses in his defense, and consider what use
those rights would be if the charged crime was so vague
the defendant couldn’t tell what he’s alleged to have done
and what sort of witnesses he might need to rebut that
charge. Without an assurance that the laws supply fair
notice, so much else of the Constitution risks becoming
only a “parchment barrie[r]” against arbitrary power.
The Federalist No. 48, p. 308 (C. Rossiter ed. 1961) (J.
Madison).
Although today’s vagueness doctrine owes much to the
8 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
guarantee of fair notice embodied in the Due Process
Clause, it would be a mistake to overlook the doctrine’s
equal debt to the separation of powers. The Constitution
assigns “[a]ll legislative Powers” in our federal govern­
ment to Congress. Art. I, §1. It is for the people, through
their elected representatives, to choose the rules that will
govern their future conduct. See The Federalist No. 78, at
465 (A. Hamilton) (“The legislature . . . prescribes the
rules by which the duties and rights of every citizen are to
be regulated”). Meanwhile, the Constitution assigns to
judges the “judicial Power” to decide “Cases” and “Contro­
versies.” Art. III, §2. That power does not license judges
to craft new laws to govern future conduct, but only to
“discer[n] the course prescribed by law” as it currently
exists and to “follow it” in resolving disputes between the
people over past events. Osborn v. Bank of United States,
9 Wheat. 738, 866 (1824).
From this division of duties, it comes clear that legisla­
tors may not “abdicate their responsibilities for setting the
standards of the criminal law,” Smith v. Goguen, 415 U. S.
566, 575 (1974), by leaving to judges the power to decide
“the various crimes includable in [a] vague phrase,” Jor-
dan v. De George, 341 U. S. 223, 242 (1951) (Jackson, J.,
dissenting). For “if the legislature could set a net large
enough to catch all possible offenders, and leave it to the
courts to step inside and say who could be rightfully de­
tained, and who should be set at large[,] [t]his would, to
some extent, substitute the judicial for the legislative
department of government.” Kolender v. Lawson, 461
U. S. 352, 358, n. 7 (1983) (internal quotation marks omit­
ted). Nor is the worry only that vague laws risk allowing
judges to assume legislative power. Vague laws also
threaten to transfer legislative power to police and prose­
cutors, leaving to them the job of shaping a vague statute’s
contours through their enforcement decisions. See
Grayned v. City of Rockford, 408 U. S. 104, 108–109 (1972)
Cite as: 584 U. S. ____ (2018) 9
Opinion of GORSUCH, J.
(“A vague law impermissibly delegates basic policy mat­
ters to policemen, judges, and juries for resolution on an
ad hoc and subjective basis”).
These structural worries are more than just formal ones.
Under the Constitution, the adoption of new laws restrict­
ing liberty is supposed to be a hard business, the product
of an open and public debate among a large and diverse
number of elected representatives. Allowing the legisla­
ture to hand off the job of lawmaking risks substituting
this design for one where legislation is made easy, with a
mere handful of unelected judges and prosecutors free to
“condem[n] all that [they] personally disapprove and for no
better reason than [they] disapprove it.” Jordan, supra, at
242 (Jackson, J., dissenting). Nor do judges and prosecu­
tors act in the open and accountable forum of a legislature,
but in the comparatively obscure confines of cases and
controversies. See, e.g., A. Bickel, The Least Dangerous
Branch: The Supreme Court at the Bar of Politics 151
(1962) (“A vague statute delegates to administrators,
prosecutors, juries, and judges the authority of ad hoc
decision, which is in its nature difficult if not impossible to
hold to account, because of its narrow impact”). For just
these reasons, Hamilton warned, while “liberty can have
nothing to fear from the judiciary alone,” it has “every
thing to fear from” the union of the judicial and legislative
powers. The Federalist No. 78, at 466. No doubt, too, for
reasons like these this Court has held “that the more
important aspect of vagueness doctrine ‘is not actual
notice, but . . . the requirement that a legislature establish
minimal guidelines to govern law enforcement’ ” and keep
the separate branches within their proper spheres.
Kolender, supra, at 358 (quoting Goguen, supra, at 575(emphasis added)).
*
Persuaded that vagueness doctrine enjoys a secure
10 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
footing in the original understanding of the Constitution,
the next question I confront concerns the standard of
review. What degree of imprecision should this Court
tolerate in a statute before declaring it unconstitutionally
vague? For its part, the government argues that where
(as here) a person faces only civil, not criminal, conse­
quences from a statute’s operation, we should declare the
law unconstitutional only if it is “unintelligible.” But in
the criminal context this Court has generally insisted that
the law must afford “ordinary people . . . fair notice of the
conduct it punishes.” Johnson, 576 U. S., at ___ (slip op.,
at 3). And I cannot see how the Due Process Clause might
often require any less than that in the civil context either.
Fair notice of the law’s demands, as we’ve seen, is “the
first essential of due process.” Connally, 269 U. S., at 391.
And as we’ve seen, too, the Constitution sought to pre­
serve a common law tradition that usually aimed to en­
sure fair notice before any deprivation of life, liberty, or
property could take place, whether under the banner of
the criminal or the civil law. See supra, at 2–7.
First principles aside, the government suggests that at
least this Court’s precedents support adopting a less-than­
fair-notice standard for civil cases. But even that much I
do not see. This Court has already expressly held that a
“stringent vagueness test” should apply to at least some
civil laws—those abridging basic First Amendment free­
doms. Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U. S. 489, 499 (1982). This Court has made clear, too,
that due process protections against vague laws are “not to
be avoided by the simple label a State chooses to fasten
upon its conduct or its statute.” Giaccio v. Pennsylvania,
382 U. S. 399, 402 (1966). So the happenstance that a law
is found in the civil or criminal part of the statute books
cannot be dispositive. To be sure, this Court has also said
that what qualifies as fair notice depends “in part on the
nature of the enactment.” Hoffman Estates, 455 U. S., at
Cite as: 584 U. S. ____ (2018) 11
Opinion of GORSUCH, J.
498. And the Court has sometimes “expressed greater
tolerance of enactments with civil rather than criminal
penalties because the consequences of imprecision are
qualitatively less severe.” Id., at 498–499. But to
acknowledge these truisms does nothing to prove that civil
laws must always be subject to the government’s emaci­
ated form of review.
In fact, if the severity of the consequences counts when
deciding the standard of review, shouldn’t we also take
account of the fact that today’s civil laws regularly impose
penalties far more severe than those found in many crimi­
nal statutes? Ours is a world filled with more and more
civil laws bearing more and more extravagant punish­
ments. Today’s “civil” penalties include confiscatory
rather than compensatory fines, forfeiture provisions that
allow homes to be taken, remedies that strip persons of
their professional licenses and livelihoods, and the power
to commit persons against their will indefinitely. Some of
these penalties are routinely imposed and are routinely
graver than those associated with misdemeanor crimes—
and often harsher than the punishment for felonies. And
not only are “punitive civil sanctions . . . rapidly expand­
ing,” they are “sometimes more severely punitive than the
parallel criminal sanctions for the same conduct.” Mann,
Punitive Civil Sanctions: The Middleground Between
Criminal and Civil Law, 101 Yale L. J. 1795, 1798 (1992)
(emphasis added). Given all this, any suggestion that
criminal cases warrant a heightened standard of review
does more to persuade me that the criminal standard
should be set above our precedent’s current threshold than
to suggest the civil standard should be buried below it.
Retreating to a more modest line of argument, the gov­
ernment emphasizes that this case arises in the immigra­
tion context and so implicates matters of foreign relations
where the Executive enjoys considerable constitutional
authority. But to acknowledge that the President has
12 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
broad authority to act in this general area supplies no
justification for allowing judges to give content to an im­
permissibly vague law.
Alternatively still, JUSTICE THOMAS suggests that, at
least at the time of the founding, aliens present in this
country may not have been understood as possessing any
rights under the Due Process Clause. For support, he
points to the Alien Friends Act of 1798. An Act Concern­
ing Aliens §1, 1 Stat. 571; post, at 6–12 (opinion of
THOMAS, J.). But the Alien Friends Act—better known as
the “Alien” part of the Alien and Sedition Acts—is one of
the most notorious laws in our country’s history. It was
understood as a temporary war measure, not one that the
legislature would endorse in a time of tranquility. See,
e.g., Fehlings, Storm on the Constitution: The First Depor­
tation Law, 10 Tulsa J. Comp. & Int’l L. 63, 70–71 (2002).
Yet even then it was widely condemned as unconstitution­
al by Madison and many others. It also went unenforced,
may have cost the Federalist Party its existence, and
lapsed a mere two years after its enactment. With this
fuller view, it seems doubtful the Act tells us a great deal
about aliens’ due process rights at the founding.2
——————
2 See, e.g., Virginia Resolutions in 4 Debates on the Federal Constitu­
tion 528 (J. Elliot ed. 1836) (explaining that the Act, “by uniting legisla­
tive and judicial powers to those of executive, subverts . . . the particu­
lar organization, and positive provisions of the federal constitution”);
Madison’s Report on the Virginia Resolutions (Jan. 7, 1800) in 17
Papers of James Madison 318 (D. Mattern ed. 1991) (Madison’s Report)
(contending that the Act violated “the only preventive justice known to
American jurisprudence,” because “[t]he ground of suspicion is to be
judged of, not by any judicial authority, but by the executive magistrate
alone”); L. Canfield & H. Wilder, The Making of Modern America 158
(H. Anderson et al. eds. 1952) (“People all over the country protested
against the Alien and Sedition Acts”); M. Baseler, “Asylum for Man­
kind”: America, 1607–1800, p. 287 (1998) (“The election of 1800 was a
referendum on—and a repudiation of—the Federalist ‘doctrines’ enun­
ciated in the debates” over, among other things, the Alien Friends Act);
Moore, Aliens and the Constitution, 88 N. Y. U. L. Rev. 801, 865, n. 300
Cite as: 584 U. S. ____ (2018) 13
Opinion of GORSUCH, J.
Besides, none of this much matters. Whether Madison
or his adversaries had the better of the debate over the
constitutionality of the Alien Friends Act, Congress is
surely free to extend existing forms of liberty to new classes
of persons—liberty that the government may then take
only after affording due process. See, e.g., Sandin v. Con-
ner, 515 U. S. 472, 477–478 (1995); Easterbrook, Sub­
stance and Due Process, 1982 S. Ct. Rev. 85, 88 (“If . . . the
constitution, statute, or regulation creates a liberty or
property interest, then the second step—determining
‘what process is due’—comes into play”). Madison made
this very point, suggesting an alien’s admission in this
country could in some circumstances be analogous to “the
grant of land to an individual,” which “may be of favor not
of right; but the moment the grant is made, the favor
becomes a right, and must be forfeited before it can be
taken away.” Madison’s Report 319. And, of course, that’s
exactly what Congress eventually chose to do here. Dec­
ades ago, it enacted a law affording Mr. Dimaya lawful
permanent residency in this country, extending to him a
statutory liberty interest others traditionally have enjoyed
——————
(2013) (“The Aliens Act and Sedition Act were met with widespread
criticism”); Lindsay, Immigration, Sovereignty, and the Constitution of
Foreignness, 45 Conn. L. Rev. 743, 759 (2013) (“[T]he [Alien Friends]
Act proved wildly unpopular among the American public, and contrib­
uted to the Republican electoral triumph in 1800 and the subsequent
demise of the Federalist Party”). Whether the law was unenforced or,
at most, enforced only once, the literature is not quite clear. Compare
Sidak, War, Liberty, and Enemy Aliens, 67 N. Y. U. L. Rev. 1402, 1406
(1992) (explaining the Act was never enforced); Cole, Enemy Aliens, 54
Stan. L. Rev. 953, 989 (2002) (same); Klein & Wittes, Preventative
Detention in American Theory and Practice, 2 Harv. Nat’l Sec. J. 85,
102, n. 71 (2011) (same); Rosenfeld, Deportation Proceedings and Due
Process of Law, 26 Colum. Hum. Rts. L. Rev. 713, 726, 733 (1995)
(same); with Fehlings, Storm on the Constitution: The First Deporta­
tion Law, 10 Tulsa J. Comp. & Int’l L. 63, 109 (2002) (stating that the
Act was enforced once, on someone who was planning on leaving the
country in a few months anyway).
14 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
to remain in and move about the country free from physi­
cal imprisonment and restraint. See Dimaya v. Lynch,
803 F. 3d 1110, 1111 (CA9 2015); 8 U. S. C. §§1101(20),
1255. No one suggests Congress had to enact statutes of
this sort. And exactly what processes must attend the
deprivation of a statutorily afforded liberty interest like
this may pose serious and debatable questions. Cf. Mur-
ray’s Lessee, 18 How., at 277 (approving summary proce­
dures in another context). But however summary those
procedures might be, it’s hard to fathom why fair notice of
the law—the most venerable of due process’s require-
ments—would not be among them. Connally, 269 U. S., at
391.3
——————
3 This Court already and long ago held that due process requires af­
fording aliens the “opportunity, at some time, to be heard” before some
lawful authority in advance of removal—and it’s unclear how that
opportunity might be meaningful without fair notice of the law’s
demands. The Japanese Immigrant Case, 189 U. S. 86, 101 (1903). Nor
do the cases JUSTICE THOMAS cites hold that a statutory right to lawful
permanent residency in this country can be withdrawn without due
process. Post, at 11 (dissenting opinion). Rather, each merely holds
that the particular statutory removal procedures under attack com­
ported with due process. See Harisiades v. Shaughnessy, 342 U. S. 580,
584–585 (1952) (rejecting argument that an “alien is entitled to consti­
tutional [due process] protection . . . to the same extent as the citizen”
before removal (emphasis added)); United States ex rel. Turner v.
Williams, 194 U. S. 279, 289–290 (1904) (deporting an alien found to be
in violation of a constitutionally valid law doesn’t violate due process);
Fong Yue Ting v. United States, 149 U. S. 698, 730 (1893) (deporting an
alien who hasn’t “complied with the conditions” required to stay in the
country doesn’t violate due process). Even when it came to judicially
unenforceable privileges in the past, “executive officials had to respect
statutory privileges that had been granted to private individuals and
that Congress had not authorized the officials to abrogate.” Nelson,
Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 581
(2007) (emphasis deleted). So in a case like ours it would’ve been
incumbent on any executive official to determine that the alien commit­
ted a qualifying crime and statutory vagueness could pose a disabling
problem even there.
Cite as: 584 U. S. ____ (2018) 15
Opinion of GORSUCH, J.
Today, a plurality of the Court agrees that we should
reject the government’s plea for a feeble standard of re­
view, but for a different reason. Ante, at 5–6. My col­
leagues suggest the law before us should be assessed
under the fair notice standard because of the special grav-
ity of its civil deportation penalty. But, grave as that
penalty may be, I cannot see why we would single it out
for special treatment when (again) so many civil laws
today impose so many similarly severe sanctions. Why,
for example, would due process require Congress to speak
more clearly when it seeks to deport a lawfully resident
alien than when it wishes to subject a citizen to indefinite
civil commitment, strip him of a business license essential
to his family’s living, or confiscate his home? I can think
of no good answer.
*
With the fair notice standard now in hand, all that
remains is to ask how it applies to the case before us. And
here at least the answer comes readily for me: to the
extent it requires an “ordinary case” analysis, the portion
of the Immigration and Nationality Act before us fails the
fair notice test for the reasons Justice Scalia identified in
Johnson and the Court recounts today.
Just like the statute in Johnson, the statute here in­
structs courts to impose special penalties on individuals
previously “convicted of” a “crime of violence.” 8 U. S. C.
§§1227(a)(2)(A)(iii), 1101(a)(43)(F). Just like the statute in
Johnson, the statute here fails to specify which crimes
qualify for that label. Instead, and again like the statute
in Johnson, the statute here seems to require a judge to
guess about the ordinary case of the crime of conviction
and then guess whether a “substantial risk” of “physical
force” attends its commission. 18 U. S. C. §16(b); Johnson,
576 U. S., at ___–___ (slip op., at 4–5). Johnson held that
a law that asks so much of courts while offering them so
16 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
little by way of guidance is unconstitutionally vague. And
I do not see how we might reach a different judgment
here.
Any lingering doubt is resolved for me by taking account
of just some of the questions judges trying to apply the
statute using an ordinary case analysis would have to
confront. Does a conviction for witness tampering ordinar­
ily involve a threat to the kneecaps or just the promise of a
bribe? Does a conviction for kidnapping ordinarily involve
throwing someone into a car trunk or a noncustodial par­
ent picking up a child from daycare? These questions do
not suggest obvious answers. Is the court supposed to
hold evidentiary hearings to sort them out, entertaining
experts with competing narratives and statistics, before
deciding what the ordinary case of a given crime looks like
and how much risk of violence it poses? What is the judge
to do if there aren’t any reliable statistics available?
Should (or must) the judge predict the effects of new tech­
nology on what qualifies as the ordinary case? After all,
surely the risk of injury calculus for crimes like larceny
can be expected to change as more thefts are committed by
computer rather than by gunpoint. Or instead of requir­
ing real evidence, does the statute mean to just leave it all
to a judicial hunch? And on top of all that may be the
most difficult question yet: at what level of generality is
the inquiry supposed to take place? Is a court supposed to
pass on the ordinary case of burglary in the relevant
neighborhood or county, or should it focus on statewide or
even national experience? How is a judge to know? How
are the people to know?
The implacable fact is that this isn’t your everyday
ambiguous statute. It leaves the people to guess about
what the law demands—and leaves judges to make it up.
You cannot discern answers to any of the questions this
law begets by resorting to the traditional canons of statu­
tory interpretation. No amount of staring at the statute’s
Cite as: 584 U. S. ____ (2018) 17
Opinion of GORSUCH, J.
text, structure, or history will yield a clue. Nor does the
statute call for the application of some preexisting body of
law familiar to the judicial power. The statute doesn’t
even ask for application of common experience. Choice,
pure and raw, is required. Will, not judgment, dictates the
result.
*
Having said this much, it is important to acknowledge
some limits on today’s holding too. I have proceeded on
the premise that the Immigration and Nationality Act, as
it incorporates §16(b) of the criminal code, commands
courts to determine the risk of violence attending the
ordinary case of conviction for a particular crime. I have
done so because no party before us has argued for a differ­
ent way to read these statutes in combination; because our
precedent seemingly requires this approach; and because
the government itself has conceded (repeatedly) that the
law compels it. Johnson, supra, at ___ (slip op., at 13);
Taylor v. United States, 495 U. S. 575, 600 (1990); Brief for
Petitioner 11, 30, 32, 36, 40, 47 (conceding that an ordi­
nary case analysis is required).
But any more than that I would not venture. In re­
sponse to the problems engendered by the ordinary case
analysis, JUSTICE THOMAS suggests that we should over­
look the government’s concession about the propriety of
that approach; reconsider our precedents endorsing it; and
read the statute as requiring us to focus on the facts of the
alien’s crime as committed rather than as the facts appear
in the ordinary case of conviction. Post, at 20–32. But
normally courts do not rescue parties from their conces­
sions, maybe least of all concessions from a party as able
to protect its interests as the federal government. And
normally, too, the crucible of adversarial testing is crucial
to sound judicial decisionmaking. We rely on it to “yield
insights (or reveal pitfalls) we cannot muster guided only
18 SESSIONS v. DIMAYA
Opinion of GORSUCH, J.
by our own lights.” Maslenjak v. United States, 582 U. S.
___, ___ (2017) (GORSUCH, J., concurring in part and con­
curring in judgment) (slip op., at 2).
While sometimes we may or even must forgo the adver­
sarial process, I do not see the case for doing so today.
Maybe especially because I am not sure JUSTICE THOMAS’s
is the only available alternative reading of the statute we
would have to consider, even if we did reject the govern­
ment’s concession and wipe the precedential slate clean.
We might also have to consider an interpretation that
would have courts ask not whether the alien’s crime of
conviction ordinarily involves a risk of physical force, or
whether the defendant’s particular crime involved such a
risk, but whether the defendant’s crime of conviction
always does so. After all, the language before us requires
a conviction for an “offense . . . that, by its nature, involves
a substantial risk of physical force.” 18 U. S. C. §16(b)
(emphasis added). Plausibly, anyway, the word “nature”
might refer to an inevitable characteristic of the offense;
one that would present itself automatically, whenever the
statute is violated. See 10 Oxford English Dictionary 247
(2d ed. 1989). While I remain open to different arguments
about our precedent and the proper reading of language
like this, I would address them in another case, whether
involving the INA or a different statute, where the parties
have a chance to be heard and we might benefit from their
learning.
It’s important to note the narrowness of our decision
today in another respect too. Vagueness doctrine repre­
sents a procedural, not a substantive, demand. It does not
forbid the legislature from acting toward any end it wishes,
but only requires it to act with enough clarity that
reasonable people can know what is required of them and
judges can apply the law consistent with their limited
office. Our history surely bears examples of the judicial
misuse of the so-called “substantive component” of due
Cite as: 584 U. S. ____ (2018) 19
Opinion of GORSUCH, J.
process to dictate policy on matters that belonged to the
people to decide. But concerns with substantive due pro­
cess should not lead us to react by withdrawing an ancient
procedural protection compelled by the original meaning of
the Constitution.
Today’s decision sweeps narrowly in yet one more way.
By any fair estimate, Congress has largely satisfied the
procedural demand of fair notice even in the INA provision
before us. The statute lists a number of specific crimes
that can lead to a lawful resident’s removal—for example,
murder, rape, and sexual abuse of a minor. 8 U. S. C.
§1101(a)(43)(A). Our ruling today does not touch this list.
We address only the statute’s “residual clause” where
Congress ended its own list and asked us to begin writing
our own. Just as Blackstone’s legislature passed a revised
statute clarifying that “cattle” covers bulls and oxen,
Congress remains free at any time to add more crimes to
its list. It remains free, as well, to write a new residual
clause that affords the fair notice lacking here. Congress
might, for example, say that a conviction for any felony
carrying a prison sentence of a specified length opens an
alien to removal. Congress has done almost exactly this in
other laws. See, e.g., 18 U. S. C. §922(g). What was done
there could be done here.
But those laws are not this law. And while the statute
before us doesn’t rise to the level of threatening death for
“pretended offences” of treason, no one should be surprised
that the Constitution looks unkindly on any law so vague
that reasonable people cannot understand its terms and
judges do not know where to begin in applying it. A gov­
ernment of laws and not of men can never tolerate that
arbitrary power. And, in my judgment, that foundational
principle dictates today’s result. Because I understand
them to be consistent with what I have said here, I join
Parts I, III, IV–B, and V of the Court’s opinion and concur
in the judgment.
Cite as: 584 U. S. ____ (2018) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1498
_________________
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL,
PETITIONER v. JAMES GARCIA DIMAYA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 17, 2018]
CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
In Johnson v. United States, we concluded that the
residual clause of the Armed Career Criminal Act was
unconstitutionally vague, given the “indeterminacy of the
wide-ranging inquiry” it required. 576 U. S. ___, ___
(2015) (slip op., at 5). Today, the Court relies wholly on
Johnson—but only some of Johnson—to strike down an-
other provision, 18 U. S. C. §16(b). Because §16(b) does
not give rise to the concerns that drove the Court’s deci-
sion in Johnson, I respectfully dissent.
I
The term “crime of violence” appears repeatedly
throughout the Federal Criminal Code. Section 16 of Title
18 defines it to mean:
“(a) an offense that has as an element the use, at-
tempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used
in the course of committing the offense.”
This definition of “crime of violence” is also incorporated in
2 SESSIONS v. DIMAYA
ROBERTS, C. J., dissenting
the definition of “aggravated felony” in the Immigration
and Nationality Act. 8 U. S. C. §1101(a)(43)(F) (“aggra-
vated felony” includes “a crime of violence (as defined in
section 16 of title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least
one year” (footnote omitted)). A conviction for an aggra-
vated felony carries serious consequences under the immi-
gration laws. It can serve as the basis for an alien’s re-
moval from the United States, and can preclude
cancellation of removal by the Attorney General.
§§1227(a)(2)(A)(iii), 1229b(a)(3).
Those consequences came to pass in respondent James
Dimaya’s case. An Immigration Judge and the Board of
Immigration Appeals interpreted §16(b) to cover Dimaya’s
two prior convictions for first-degree residential burglary
under California law, subjecting him to removal. To stave
off that result, Dimaya argued that the language of §16(b)
was void for vagueness under the Due Process Clause of
the Fifth Amendment.
The parties begin by disputing whether a criminal or
more relaxed civil vagueness standard should apply in
resolving Dimaya’s challenge. A plurality of the Court
rejects the Government’s argument in favor of a civil
standard, because of the “grave nature of deportation,”
Jordan v. De George, 341 U. S. 223, 231 (1951); see ante,
at 6 (plurality opinion); JUSTICE GORSUCH does so for
broader reasons, see ante, at 10–15 (GORSUCH, J., concur-
ring in part and concurring in judgment). I see no need to
resolve which standard applies, because I would hold that
§16(b) is not unconstitutionally vague even under the
standard applicable to criminal laws.
II
This is not our first encounter with §16(b). In Leocal v.
Ashcroft, 543 U. S. 1 (2004), we were asked to decide
whether either subsection of §16 covers a particular cate-
Cite as: 584 U. S. ____ (2018) 3
ROBERTS, C. J., dissenting
gory of state crimes, specifically DUI offenses involving no
more than negligent conduct. 543 U. S., at 6. Far from
finding §16(b) “hopeless[ly] indetermina[te],” Johnson, 576
U. S., at ___ (slip op., at 7), we considered the provision
clear and unremarkable: “while §16(b) is broader than
§16(a) in the sense that physical force need not actually be
applied,” the provision “simply covers offenses that natu-
rally involve a person acting in disregard of the risk that
physical force might be used against another in commit-
ting an offense,” Leocal, 543 U. S., at 10–11. Applying
that standard to the state offense at issue, we concluded—
unanimously—that §16(b) “cannot be read to include [a]
conviction for DUI causing serious bodily injury under
Florida law.” Id., at 11.
Leocal thus provides a model for how courts should
assess whether a particular crime “by its nature” involves
a risk of the use of physical force. At the outset, our opin-
ion set forth the elements of the Florida DUI statute,
which made it a felony “for a person to operate a vehicle
while under the influence and, ‘by reason of such opera-
tion, caus[e] . . . [s]erious bodily injury to another.’ ” 543
U. S., at 7. Our §16(b) analysis, in turn, focused on those
specific elements in concluding that a Florida offender’s
acts would not naturally give rise to the requisite risk of
force “in the course of committing the offense.” Id., at 11.
“In no ‘ordinary or natural’ sense,” we explained, “can it be
said that a person risks having to ‘use’ physical force
against another person in the course of operating a vehicle
while intoxicated and causing injury.” Ibid.
The Court holds that the same provision we had no
trouble applying in Leocal is in fact incapable of reasoned
application. The sole justification for this turnabout is the
resemblance between the language of §16(b) and the lan-
guage of the residual clause of the Armed Career Criminal
Act (ACCA) that was at issue in Johnson. The latter
provision defined a “violent felony” to include “any crime
4 SESSIONS v. DIMAYA
ROBERTS, C. J., dissenting
punishable by imprisonment for a term exceeding one
year . . . that . . . is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that pre­
sents a serious potential risk of physical injury to another.”
18 U. S. C. §924(e)(2)(B)(ii) (emphasis added).
In Johnson, we concluded that the ACCA residual
clause (the “or otherwise” language) gave rise to two forms
of intractable uncertainty, which “conspire[d]” to render
the provision unconstitutionally vague. 576 U. S., at ___
(slip op., at 5). First, the residual clause asked courts to
gauge the “potential risk” of “physical injury” posed by the
conduct involved in the crime. Ibid. That inquiry, we
determined, entailed not only an evaluation of the “crimi-
nal’s behavior,” but also required courts to consider “how
the idealized ordinary case of the crime subsequently
plays out.” Ibid. Second, the residual clause obligated
courts to compare that risk to an indeterminate stand-
ard—one that was inextricably linked to the provision’s
four enumerated crimes, which presented differing kinds
and degrees of risk. Id., at ___ (slip op., at 6). This murky
confluence of features, each of which “may [have been]
tolerable in isolation,” together “ma[de] a task for us
which at best could be only guesswork.” Id., at ___ (slip
op., at 10).
Section 16(b) does not present the same ambiguities.
The two provisions do correspond to some extent. Under
our decisions, both ask the sentencing court to consider
whether a particular offense, defined without regard to the
facts of the conviction, poses a specified risk. And, rele-
vant to both statutes, we have explained that in deciding
whether statutory elements inherently produce a risk, a
court must take into account how those elements will
ordinarily be fulfilled. See James v. United States, 550
U. S. 192, 208 (2007) (this categorical inquiry asks
“whether the conduct encompassed by the elements of the
Cite as: 584 U. S. ____ (2018) 5
ROBERTS, C. J., dissenting
offense, in the ordinary case, presents” the requisite risk).1
In the Court’s view, that effectively resolves this case. But
the Court too readily dismisses the significant textual
distinctions between §16(b) and the ACCA residual clause.
See also ante, at 2 (opinion of GORSUCH, J.). Those differ-
ences undermine the conclusion that §16(b) shares each
of the “dual flaws” of that clause. Ante, at 21 (majority
opinion).
To begin, §16(b) yields far less uncertainty “about how
to estimate the risk posed by a crime.” Johnson, 576 U. S.,
at ___ (slip op., at 5). There are three material differences
between §16(b) and the ACCA residual clause in this
respect. First, the ACCA clause directed the reader to
consider whether the offender’s conduct presented a “po­
tential risk” of injury. Forced to give meaning to that
befuddling choice of phrase—which layered one indeter-
minate term on top of another—we understood the word
“potential” to signify that “Congress intended to encom-
pass possibilities even more contingent or remote than “a
simple ‘risk.’ ” James, 550 U. S., at 207–208. As we ex-
plained in Johnson, that made for a “speculative” inquiry
“detached from statutory elements.” 576 U. S., at ___ (slip
op., at 5). In other words, the offense elements could not
constrain the risk inquiry in the manner they do here. See
——————
1 All this “ordinary case” caveat means is that while “[o]ne can always
hypothesize unusual cases in which even a prototypically violent crime
might not present a genuine risk,” courts should exclude those atypical
cases in assessing whether the offense qualifies. James, 550 U. S., at
208. As we have explained, under that approach, it is not the case that
“every conceivable factual offense covered by a statute” must pose the
requisite risk “before the offense can be deemed” a crime of violence.
Ibid. But the same is true of the categorical approach generally. See
ibid. (using the terms just quoted to characterize both the ordinary case
approach and the categorical approach for enumerated offenses set
forth in Taylor v. United States, 495 U. S. 575 (1990)); Moncrieffe v.
Holder, 569 U. S. 184, 191 (2013); Gonzales v. Duenas-Alvarez, 549
U. S. 183, 193 (2007).
6 SESSIONS v. DIMAYA
ROBERTS, C. J., dissenting
Leocal, 543 U. S., at 11. The “serious potential risk”
standard also forced courts to assess in an expansive way
the “collateral consequences” of the perpetrator’s acts. For
example, courts had to take into account the concern that
others might cause injury in attempting to apprehend the
offender. See Sykes v. United States, 564 U. S. 1, 8–9
(2011). Section 16(b), on the other hand, asks about “risk”
alone, a familiar concept of everyday life. It therefore calls
for a commonsense inquiry that does not compel a court to
venture beyond the offense elements to consider contin-
gent and remote possibilities.
Second, §16(b) focuses exclusively on the risk that the
offender will “use[ ]” “physical force” “against” another
person or another person’s property. Thus, unlike the
ACCA residual clause, Ҥ16(b) plainly does not encompass
all offenses which create a ‘substantial risk’ that injury
will result from a person’s conduct.” Leocal, 543 U. S., at
10, n. 7 (emphasis added). The point is not that an inquiry
into the risk of “physical force” is markedly more determi-
nate than an inquiry into the risk of “physical injury.” But
see ante, at 19–20. The difference is that §16(b) asks
about the risk that the offender himself will actively em­
ploy force against person or property. That language does
not sweep in all instances in which the offender’s acts, or
another person’s reaction, might result in unintended or
negligent harm.
Third, §16(b) has a temporal limit that the ACCA resid-
ual clause lacked: The “substantial risk” of force must
arise “in the course of committing the offense.” Properly
interpreted, this means the statute requires a substantial
risk that the perpetrator will use force while carrying out
the crime. See Leocal, 543 U. S., at 10 (“The reckless
disregard in §16 relates . . . to the risk that the use of
physical force against another might be required in com-
mitting a crime.”). The provision thereby excludes more
attenuated harms that might arise following the comple-
Cite as: 584 U. S. ____ (2018) 7
ROBERTS, C. J., dissenting
tion of the crime. The ACCA residual clause, by contrast,
contained no similar language restricting its scope. And
the absence of such a limit, coupled with the reference to
“potential” risks, gave courts free rein to classify an of-
fense as a violent felony based on injuries that might occur
after the offense was over and done. See, e.g., United
States v. Benton, 639 F. 3d 723, 732 (CA6 2011) (finding
that “solicitation to commit aggravated assault” qualified
under the ACCA residual clause on the theory that the
solicited individual might subsequently carry out the
requested act).
Why does any of this matter? Because it mattered in
Johnson. More precisely, the expansive language in the
ACCA residual clause contributed to our determination
that the clause gave rise to “grave uncertainty about how
to estimate the risk posed by a crime.” 576 U. S., at ___
(slip op., at 5). “Critically,” we said—a word that tends to
mean something—“picturing the criminal’s behavior is not
enough.” Ibid. (emphasis added). Instead, measuring
“potential risk” “seemingly require[d] the judge to imagine
how the idealized ordinary case of the crime subsequently
plays out.” Ibid. (emphasis added). Not so here. In apply-
ing §16(b), considering “the criminal’s behavior” is enough.
Those three distinctions—the unadorned reference to
“risk,” the focus on the offender’s own active employment
of force, and the “in the course of committing” limitation—
also mean that many hard cases under ACCA are easier
under §16(b). Take the firearm possession crime from
Johnson itself, which had as its constituent elements
(1) unlawfully (2) possessing (3) a short-barreled shotgun.
None of those elements, “by its nature,” carries “a sub-
stantial risk” that the possessor will use force against
another “in the course of committing the offense.” Nothing
inherent in the act of firearm possession, even when it is
unlawful, gives rise to a substantial risk that the owner
will then shoot someone. See United States v. Serafin, 562
8 SESSIONS v. DIMAYA
ROBERTS, C. J., dissenting
F. 3d 1105, 1113 (CA10 2009) (recognizing that “Leocal
instructs [a court] to focus not on whether possession will
likely result in violence, but instead whether one pos-
sessing an unregistered weapon necessarily risks the need
to employ force to commit possession”).2 Yet short-
barreled shotgun possession presented a closer question
under the ACCA residual clause, because the “serious
potential risk” language seemingly directed us to consider
“the circumstances and conduct that ordinarily attend the
offense,” in addition to the offense itself. Johnson, 576
U. S., at ___ (ALITO, J., dissenting) (slip op., at 17); see id.,
at ___–___ (slip op., at 19–20) (reasoning that the crime
must qualify because “a person who chooses to break the
law and risk the heavy criminal penalty incurred by pos-
sessing a notoriously dangerous weapon is [likely] to use
that weapon in violent ways”).
Failure to report to a penal institution, the subject of
Chambers v. United States, 555 U. S. 122 (2009), is another
crime “whose treatment becomes more obvious under
§16(b) than under ACCA,” ante, at 18. In Chambers, the
——————
2 TheCourt protests that this straightforward analysis fails to take
account of the crime’s ordinary case. Ante, at 18–19, n. 6. But the fact
that the element of “possession” may “take[ ] place in a variety of
ways”—for instance, one may possess a firearm “in a closet, in a store-
room, in a car, in a pocket,” “unloaded, disassembled, or locked away,”
Johnson, 576 U. S., at ___ (THOMAS, J., concurring in judgment) (slip
op., at 4)—matters very little. That is because none of the alternative
ways of satisfying that element produce a substantial risk that the
possessor will use physical force against the person or property of
another. And no one would say that a person “possesses” a gun by
firing it or threatening someone with it. Cf. id., at ___ (opinion of
THOMAS, J.) (slip op., at 5) (“[T]he risk that the Government identifies
arises not from the act of possessing the weapon, but from the act of
using it.”). The Court’s insistence that this offense is nonetheless
“difficult to classify” under §16(b), ante, at 18, n. 6, is surprising in light
of our assessment, just two Terms ago, that §16 does not cover “felon-
in-possession laws and other firearms offenses,” Luna Torres v. Lynch,
578 U. S. ___, ___ (2016) (slip op., at 13).
Cite as: 584 U. S. ____ (2018) 9
ROBERTS, C. J., dissenting
Government argued that the requisite risk of injury arises
not necessarily at the time the offender fails to report to
prison, but instead later, when an officer attempts to
recapture the fugitive. 555 U. S., at 128. The majority is
correct that we ultimately “reject[ed]” the Government’s
contention. Ante, at 18. But we did so after “assum[ing]
for argument’s sake” its premise—that is, “the relevance of
violence that may occur long after an offender fails to
report.” 555 U. S., at 128; see id., at 129 (looking at 160
cases of “failure to report” and observing that “none at all
involved violence . . . during the commission of the offense
itself, [nor] during the offender’s later apprehension”).
The “in the course of committing the offense” language in
§16(b) helpfully forecloses that debate.
DUI offenses are yet another example. Because §16(b)
asks about the risk that the offender will “use[ ]” “physical
force,” we readily concluded in Leocal that the subsection
does not cover offenses where the danger arises from the
offender’s negligent or accidental conduct, including drunk
driving. 543 U. S., at 11. Applying the ACCA residual
clause proved more trying. When asked to decide whether
the clause covered drunk driving offenses, a majority of
the Court concluded that the answer was no. Begay v.
United States, 553 U. S. 137 (2008). Our decision was
based, however, on the inference that the clause must
cover only “purposeful, ‘violent,’ and ‘aggressive’ con-
duct”—a test derived not from the “conduct that presents a
serious potential risk of physical injury” language, but
instead by reference to (what we guessed to be) the unify-
ing characteristics of the enumerated offenses. Id., at
144–145. Four Members of the Court criticized that test,
see id., at 150–153 (Scalia, J., concurring in judgment);
id., at 158–160, 162–163 (ALITO, J., dissenting), though
they themselves disagreed about whether DUIs were
covered, see id., at 153–154 (opinion of Scalia, J.); id., at
156–158 (opinion of ALITO, J.). And the Court distanced
10 SESSIONS v. DIMAYA
ROBERTS, C. J., dissenting
itself from the Begay requirement only a few years later
when confronting the crime of vehicular flight. See Sykes,
564 U. S., at 12–13; Johnson, 576 U. S., at ___–___ (slip
op., at 8–9).
Which brings me to the second part of the Court’s analy-
sis: its objection that §16(b), like the ACCA residual
clause, leaves “uncertainty about the level of risk that
makes a crime ‘violent.’ ” Ante, at 10. The “substantial
risk” standard in §16(b) is significantly less confusing
because it is not tied to a disjointed list of paradigm of-
fenses. Recall that the ACCA provision defined a “violent
felony” to include a crime that “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U. S. C. §924(e)(2)(B)(ii) (emphasis
added). As our Court recognized early on, that “otherwise”
told the reader to understand the “serious potential risk of
physical injury” standard by way of the four enumerated
crimes. James, 550 U. S., at 203. But how, exactly? That
question dogged our residual clause cases for years, until
we said no más in Johnson.
In our first foray, James, we resolved the case by asking
whether the risk posed by the crime of attempted burglary
was “comparable to that posed by its closest analog among
the enumerated offenses,” which was completed burglary.
550 U. S., at 203. While that rule “[took] care of attempted
burglary,” it “offer[ed] no help at all with respect to the
vast majority of offenses, which have no apparent analog
among the enumerated crimes.” Johnson, 576 U. S., at ___
(slip op., at 7). The James dissent, for its part, would have
determined the requisite degree of risk from the least
dangerous of the enumerated crimes, and compared the
offense to that. 550 U. S., at 218–219 (opinion of Scalia,
J.). But that approach also proved to be harder than it
sounded. See id., at 219–227.
After James came Begay, in which we concluded that
Cite as: 584 U. S. ____ (2018) 11
ROBERTS, C. J., dissenting
the enumerated offenses served as an independent limita-
tion on the kind of crime that could qualify. 553 U. S., at
142; see Chambers, 555 U. S., at 128 (applying the Begay
standard). As discussed, that test was short lived (though
we did not purport to wholly repudiate it). See Sykes, 564
U. S., at 13. Finally, in Sykes—our penultimate residual
clause case—we acknowledged the prior use of the closest-
analog test in James, but instead focused on whether the
risk posed by vehicular flight was “similar in degree of
danger” to the listed offenses of arson and burglary. 564
U. S., at 8–10. As a result, Justice Scalia’s dissent charac-
terized the Sykes majority as applying the test from his
prior dissent in James, not James itself. See 564 U. S., at29–30, 33. This series of precedents laid bare our “repeated
inability to craft a principled test out of the statutory
text,” id., at 34 (opinion of Scalia, J.), as the Court ulti-
mately acknowledged in Johnson, 576 U. S., at ___ (slip
op., at 7).
The enumerated offenses, and our Court’s failed at-
tempts to make sense of them, were essential to Johnson’s
conclusion that the residual clause “leaves uncertainty
about how much risk it takes for a crime to qualify as a
violent felony.” Id., at ___ (slip op., at 6). As Johnson
explained, the issue was not that the statute employed a
fuzzy standard. That kind of thing appears in the statute
books all the time. Id., at ___, ___ (slip op., at 6, 12). In
the majority’s retelling today, the difficulty inhered solely
in the fact that the statute paired such a standard with
the ordinary case inquiry. See ante, at 8, 10–11, 21. But
that account sidesteps much of Johnson’s reasoning. See
576 U. S., at ___–___, ___, ___–___, ___ (slip op., at 4–5, 6,
7–9, 12). Our opinion emphasized that the word “other-
wise” “force[d]” courts to interpret the amorphous stand-
ard “in light of ” the four enumerated crimes, which are
“not much more similar to one another in kind than in
degree of risk posed.” Id., at ___, ___ (slip op., at 6, 8). Or,
12 SESSIONS v. DIMAYA
ROBERTS, C. J., dissenting
as Johnson put it more vividly, “[t]he phrase ‘shades of
red,’ standing alone, does not generate confusion or un-
predictability; but the phrase ‘fire-engine red, light pink,
maroon, navy blue, or colors that otherwise involve shades
of red’ assuredly does so.” Id., at ___ (slip op., at 12).
Indeed, the author of Johnson had previously, and repeat-
edly, described this feature of the residual clause as the
“crucial . . . respect” in which the law was problematic.
See James, 550 U. S., at 230, n. 7 (opinion of Scalia, J.);
Sykes, 564 U. S., at 35 (opinion of Scalia, J.).
With §16(b), by contrast, a court need simply consider
the meaning of the word “substantial”—a word our Court
has interpreted and applied innumerable times across a
wide variety of contexts.3 The court does not need to give
that familiar word content by reference to four different
offenses with varying amounts and kinds of risk.
In its effort to recast a considerable portion of Johnson
as dicta, the majority speculates that if the enumerated
offenses had truly mattered to the outcome, the Court
would have told lower courts to “give up on trying to inter-
pret the clause by reference to” those offenses, rather than
striking down the provision entirely. Ante, at 21. No
litigant in Johnson suggested that solution, which is not
surprising. Such judicial redrafting could have expanded
the reach of the criminal provision—surely a job for Con-
——————
3 To name a round dozen: Ayestas v. Davis, 584 U. S. ___, ___ (2018)
(slip op., at 16); Life Technologies Corp. v. Promega Corp., 580 U. S. ___,
___–___ (2017) (slip op., at 5–8); Virginia v. Hicks, 539 U. S. 113, 119–
120, 122–124 (2003); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U. S.
184, 196–198 (2002); Slack v. McDaniel, 529 U. S. 473, 483–484 (2000);
Gentile v. State Bar of Nev., 501 U. S. 1030, 1075–1076 (1991); Cage v.
Louisiana, 498 U. S. 39, 41 (1990) (per curiam); Steadman v. SEC, 450
U. S. 91, 98 (1981); Palermo v. United States, 360 U. S. 343, 351–353
(1959); United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586,
593–596 (1957); Levinson v. Spector Motor Service, 330 U. S. 649, 670–
671 (1947); Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229
(1938).
Cite as: 584 U. S. ____ (2018) 13
ROBERTS, C. J., dissenting
gress alone.
In any event, I doubt the majority’s proposal would have
done the trick. And that is because the result in Johnson
did not follow from the presence of one frustrating textual
feature or another. Quite the opposite: The decision em-
phasized that it was the “sum” of the “uncertainties” in the
ACCA residual clause, confirmed by years of experience,
that “convince[d]” us the provision was beyond salvage.
Johnson, 576 U. S., at ___ (slip op., at 10). Those failings
do not characterize the provision at issue here.
III
The more constrained inquiry required under §16(b)—
which asks only whether the offense elements naturally
carry with them a risk that the offender will use force in
committing the offense—does not itself engender “grave
uncertainty about how to estimate the risk posed by a
crime.” And the provision’s use of a commonplace sub-
stantial risk standard—one not tied to a list of crimes that
lack a unifying feature—does not give rise to intolerable
“uncertainty about how much risk it takes for a crime to
qualify.” That should be enough to reject Dimaya’s facial
vagueness challenge.4
Because I would rely on those distinctions to uphold
——————
4 The Court also finds it probative that “a host of issues” respecting
§16(b) “divide” the lower courts. Ante, at 22. Yet the Court does little
to explain how those alleged conflicts vindicate its particular concern
about the provision (namely, the ordinary case inquiry). And as the
Government illustrates, many of those divergent results likely can be
chalked up to material differences in the state offense statutes at issue.
Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 783–785 (CA5
2012) (per curiam) (reasoning that New Mexico car burglary “requires
that the criminal lack authorization to enter the vehicle—a require-
ment alone which will most often ensure some force [against property]
is used”), with Sareang Ye v. INS, 214 F. 3d 1128, 1134 (CA9 2000)
(finding it relevant that California car burglary does not require unlaw-
ful or unprivileged entry); see Reply Brief 17–20, and nn. 5–6.
14 SESSIONS v. DIMAYA
ROBERTS, C. J., dissenting
§16(b), the Court reproaches me for not giving sufficient
weight to a “core insight” of Johnson. Ante, at 10, n. 4; see
ante, at 15 (opinion of GORSUCH, J.) (arguing that §16(b)
runs afoul of Johnson “to the extent [§16(b)] requires an
‘ordinary case’ analysis”). But the fact that the ACCA
residual clause required the ordinary case approach was
not itself sufficient to doom the law. We instead took
pains to clarify that our opinion should not be read to
impart such an absolute rule. See Johnson, 576 U. S., at
___ (slip op., at 10). I would adhere to that careful holding
and not reflexively extend the decision to a different stat-
ute whose reach is, on the whole, far more clear.
The Court does the opposite, and the ramifications of
that decision are significant. First, of course, today’s
holding invalidates a provision of the Immigration and
Nationality Act—part of the definition of “aggravated
felony”—on which the Government relies to “ensure that
dangerous criminal aliens are removed from the United
States.” Brief for United States 54. Contrary to the
Court’s back-of-the-envelope assessment, see ante, at 23,
n. 12, the Government explains that the definition is
“critical” for “numerous” immigration provisions. Brief for
United States 12.
In addition, §16 serves as the universal definition of
“crime of violence” for all of Title 18 of the United States
Code. Its language is incorporated into many procedural
and substantive provisions of criminal law, including
provisions concerning racketeering, money laundering,
domestic violence, using a child to commit a violent crime,
and distributing information about the making or use of
explosives. See 18 U. S. C. §§25(a)(1), 842(p)(2), 1952(a),
1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). Of special
concern, §16 is replicated in the definition of “crime of
violence” applicable to §924(c), which prohibits using or
carrying a firearm “during and in relation to any crime of
violence,” or possessing a firearm “in furtherance of any
Cite as: 584 U. S. ____ (2018) 15
ROBERTS, C. J., dissenting
such crime.” §§924(c)(1)(A), (c)(3). Though I express no
view on whether §924(c) can be distinguished from the
provision we consider here, the Court’s holding calls into
question convictions under what the Government warns
us is an “oft-prosecuted offense.” Brief for United
States 12.
Because Johnson does not compel today’s result, I
respectfully dissent.
Cite as: 584 U. S. ____ (2018) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1498
_________________
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL,
PETITIONER v. JAMES GARCIA DIMAYA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 17, 2018]
JUSTICE THOMAS, with whom JUSTICE KENNEDY and
JUSTICE ALITO join as to Parts I–C–2, II–A–1, and II–B,
dissenting.
I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b),
as incorporated by the Immigration and Nationality Act
(INA), is not unconstitutionally vague. Section 16(b) lacks
many of the features that caused this Court to invalidate
the residual clause of the Armed Career Criminal Act
(ACCA) in Johnson v. United States, 576 U. S. ___ (2015).
ACCA’s residual clause—a provision that this Court had
applied four times before Johnson—was not unconstitu­
tionally vague either. See id., at ___ (THOMAS, J., concur­
ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J.,
dissenting) (slip op., at 13–17). But if the Court insists on
adhering to Johnson, it should at least take Johnson at its
word that the residual clause was vague due to the “ ‘sum’ ”
of its specific features. Id., at ___ (majority opinion) (slip
op., at 10). By ignoring this limitation, the Court jettisons
Johnson’s assurance that its holding would not jeopardize
“dozens of federal and state criminal laws.” Id., at ___
(slip op., at 12).
While THE CHIEF JUSTICE persuasively explains why
respondent cannot prevail under our precedents, I write
separately to make two additional points. First, I continue
to doubt that our practice of striking down statutes as
2 SESSIONS v. DIMAYA
THOMAS, J., dissenting
unconstitutionally vague is consistent with the original
meaning of the Due Process Clause. See id., at ___–___
(opinion of THOMAS, J.) (slip op., at 7–18). Second, if the
Court thinks that §16(b) is unconstitutionally vague be­
cause of the “categorical approach,” see ante, at 6–11, then
the Court should abandon that approach—not insist on
reading it into statutes and then strike them down. Ac­
cordingly, I respectfully dissent.
I
I continue to harbor doubts about whether the vague­
ness doctrine can be squared with the original meaning of
the Due Process Clause—and those doubts are only ampli­
fied in the removal context. I am also skeptical that the
vagueness doctrine can be justified as a way to prevent
delegations of core legislative power in this context. But I
need not resolve these questions because, if the vagueness
doctrine has any basis in the Due Process Clause, it must
be limited to cases in which the statute is unconstitution­
ally vague as applied to the person challenging it. That is
not the case for respondent, whose prior convictions for
first-degree residential burglary in California fall comfort­
ably within the scope of §16(b).
A
The Fifth Amendment’s Due Process Clause provides
that no person shall be “deprived of life, liberty, or prop-
erty, without due process of law.” Section 16(b), as incorpo­
rated by the INA, cannot violate this Clause unless the
following propositions are true: The Due Process Clause
requires federal statutes to provide certain minimal pro­
cedures, the vagueness doctrine is one of those procedures,
and the vagueness doctrine applies to statutes governing
the removal of aliens. Although I need not resolve any of
these propositions today, each one is questionable. I will
address them in turn.
Cite as: 584 U. S. ____ (2018)
3
THOMAS, J., dissenting
1
First, the vagueness doctrine is not legitimate unless
the “law of the land” view of due process is incorrect.
Under that view, due process “require[s] only that our
Government . . . proceed . . . according to written constitu­
tional and statutory provision[s] before depriving someone
of life, liberty, or property.” Nelson v. Colorado, 581 U. S.
___, ___, n. 1 (2017) (THOMAS, J., dissenting) (slip op., at 2,
n. 1) (internal quotation marks omitted). More than a half
century after the founding, the Court rejected this view of
due process in Murray’s Lessee v. Hoboken Land & Im-
provement Co., 18 How. 272 (1856). See id., at 276 (hold­
ing that the Due Process Clause “is a restraint on the
legislative as well as on the executive and judicial powers
of the government”). But the textual and historical sup­
port for the law-of-the-land view is not insubstantial.1
2
Even under Murray’s Lessee, the vagueness doctrine is
legitimate only if it is a “settled usag[e] and mod[e] of
proceeding existing in the common and statute law of
England, before the emigration of our ancestors.” Id., at
277. That proposition is dubious. Until the end of the
19th century, “there is little indication that anyone . . .
believed that courts had the power under the Due Process
Claus[e] to nullify statutes on [vagueness] ground[s].”
Johnson, supra, at ___ (opinion of THOMAS, J.) (slip op., at
——————
1 See,e.g., In re Winship, 397 U. S. 358, 382–384 (1970) (Black, J.,
dissenting); Rosenkranz, The Objects of the Constitution, 63 Stan.
L. Rev. 1005, 1041–1043 (2011); Berger, “Law of the Land” Reconsid­
ered, 74 Nw. U. L. Rev. 1, 2–17 (1979); Corwin, The Doctrine of Due
Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368–373
(1911); see also 4 The Papers of Alexander Hamilton 35 (Syrett &
Cooke eds. 1962) (“The words ‘due process’ have a precise technical
import, and . . . can never be referred to an act of legislature”).
4 SESSIONS v. DIMAYA
THOMAS, J., dissenting
11). That is not because Americans were unfamiliar with
vague laws. Rather, early American courts, like their
English predecessors, addressed vague laws through
statutory construction instead of constitutional law. See
Note, Void for Vagueness: An Escape From Statutory
Interpretation, 23 Ind. L. J. 272, 274–279 (1948). They
invoked the rule of lenity and declined to apply vague
penal statutes on a case-by-case basis. See Johnson, 576
U. S., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–10);
e.g., ante, at 5–6, and n. 1 (GORSUCH, J., concurring in part
and concurring in judgment) (collecting cases).2 The mod­
ern vagueness doctrine, which claims the judicial author­
ity to “strike down” vague legislation on its face, did not
emerge until the turn of the 20th century. See Johnson,
576 U. S., at ___–___ (opinion of THOMAS, J.) (slip op., at
11–13).
The difference between the traditional rule of lenity and
——————
2 Before the 19th century, when virtually all felonies were punishable
by death, English courts would sometimes go to extremes to find a
reason to invoke the rule of lenity. See Hall, Strict or Liberal Construc­
tion of Penal Statutes, 48 Harv. L. Rev. 748, 751 (1935); e.g., ante, at 4–
7 (GORSUCH, J., concurring in part and concurring in judgment) (citing
Blackstone’s discussion of a case about “cattle”). As the death penalty
became less common, courts on this side of the Atlantic tempered the
rule of lenity, clarifying that the rule requires an “ambiguity” in the
text and cannot be used “to defeat the obvious intention of the legisla­
ture.” United States v. Wiltberger, 5 Wheat. 76 (1820) (Marshall, C. J.).
Early American courts also declined to apply nonpenal statutes that
were “unintelligible.” Johnson v. United States, 576 U. S. ___, ___, n. 3
(2014) (THOMAS, J., concurring in judgment) (slip op., at 10, n. 3); e.g.,
ante, at 5–6, and n. 1 (opinion of GORSUCH, J.) (collecting cases). Like
lenity, however, this practice reflected a principle of statutory construc­
tion that was much narrower than the modern constitutional vagueness
doctrine. Unintelligible statutes were considered inoperative because
they were impossible to apply to individual cases, not because they
were unconstitutional for failing to provide “fair notice.” See Johnson,
576 U. S., at ___, n. 3 (opinion of THOMAS, J.) (slip op., at 10, n. 3).
Cite as: 584 U. S. ____ (2018) 5
THOMAS, J., dissenting
the modern vagueness doctrine is not merely semantic.
Most obviously, lenity is a tool of statutory construction,
which means States can abrogate it—and many have.
Hall, Strict or Liberal Construction of Penal Statutes, 48
Harv. L. Rev. 748, 752–754 (1935); see also Scalia, Assorted
Canards of Contemporary Legal Analysis, 40 Case W.
Res. L. Rev. 581, 583 (1989) (“Arizona, by the way, seems
to have preserved a fair and free society without adopting
the rule that criminal statutes are to be strictly construed”
(citing Ariz. Rev. Stat. §1-211C (1989))). The vagueness
doctrine, by contrast, is a rule of constitutional law that
States cannot alter or abolish. Lenity, moreover, applies
only to “penal” statutes, 1 Blackstone, Commentaries on
the Laws of England 88 (1765), but the vagueness doctrine
extends to all regulations of individual conduct, both penal
and nonpenal, Johnson, 576 U. S., at ___ (opinion of
THOMAS, J.) (slip op., at 6); see also Note, Indefinite Crite­
ria of Definiteness in Statutes, 45 Harv. L. Rev. 160, 163
(1931) (explaining that the modern vagueness doctrine
was not merely an “extension of the rule of strict construc­
tion of penal statutes” because it “expressly include[s] civil
statutes within its scope,” reflecting a “regrettable disre­
gard” for legislatures).3 In short, early American courts
were not applying the modern vagueness doctrine by
another name. They were engaged in a fundamentally
different enterprise.
Tellingly, the modern vagueness doctrine emerged at a
time when this Court was actively interpreting the Due
——————
3 This distinction between penal and nonpenal statutes would be
decisive here because, traditionally, civil deportation laws were not
considered penal. See Bugajewitz v. Adams, 228 U. S. 585, 591 (1913);
Fong Yue Ting v. United States, 149 U. S. 698, 709, 730 (1893). Al-
though this Court has applied a kind of strict construction to civil
deportation laws, that practice did not emerge until the mid-20th
century. See Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948).
6 SESSIONS v. DIMAYA
THOMAS, J., dissenting
Process Clause to strike down democratically enacted
laws—first in the name of the “liberty of contract,” then in
the name of the “right to privacy.” See Johnson, 576 U. S.,
at ___–___ (opinion of THOMAS, J.) (slip op., at 13–16).
That the vagueness doctrine “develop[ed] on the federal
level concurrently with the growth of the tool of substan­
tive due process” does not seem like a coincidence. Note,
23 Ind. L. J., at 278. Like substantive due process, the
vagueness doctrine provides courts with “open-ended
authority to oversee [legislative] choices.” Kolender v.
Lawson, 461 U. S. 352, 374 (1983) (White, J., dissenting).
This Court, for example, has used the vagueness doctrine
to invalidate antiloitering laws, even though those laws
predate the Declaration of Independence. See Johnson,
supra, at ___ (opinion of THOMAS, J.) (slip op., at 7) (dis­
cussing Chicago v. Morales, 527 U. S. 41 (1999)).
This Court also has a bad habit of invoking the Due
Process Clause to constitutionalize rules that were tradi­
tionally left to the democratic process. See, e.g., Williams
v. Pennsylvania, 579 U. S. ___ (2016); BMW of North
America, Inc. v. Gore, 517 U. S. 559 (1996); Foucha v.
Louisiana, 504 U. S. 71 (1992); cf. Montgomery v. Louisi-
ana, 577 U. S. ___ (2016). If vagueness is another example
of this practice, then that is all the more reason to doubt
its legitimacy.
3
Even assuming the Due Process Clause prohibits vague
laws, this prohibition might not apply to laws governing
the removal of aliens. Cf. Johnson, 576 U. S., at ___, n. 7
(opinion of THOMAS, J.) (slip op., at 17, n. 7) (stressing the
need for specificity when assessing alleged due process
rights). The Founders were familiar with English law,
where “ ‘the only question that ha[d] ever been made in
regard to the power to expel aliens [was] whether it could
be exercised by the King without the consent of Parlia­
Cite as: 584 U. S. ____ (2018) 7
THOMAS, J., dissenting
ment.’ ” Demore v. Kim, 538 U. S. 510, 538 (2003)
(O’Connor, J., concurring in part and concurring in judg­
ment) (quoting Fong Yue Ting v. United States, 149 U. S.
698, 709 (1893)). And, in this country, the notion that the
Due Process Clause governed the removal of aliens was
not announced until the 20th century.
Less than a decade after the ratification of the Bill of
Rights, the founding generation had an extensive debate
about the relationship between the Constitution and
federal removal statutes. In 1798, the Fifth Congress
enacted the Alien Acts. One of those Acts, the Alien
Friends Act, gave the President unfettered discretion to
expel any aliens “he shall judge dangerous to the peace
and safety of the United States, or shall have reasonable
grounds to suspect are concerned in any treasonable or
secret machinations against the government thereof.” An
Act Concerning Aliens §1, 1 Stat. 571. This statute was
modeled after the Aliens Act 1793 in England, which
similarly gave the King unfettered discretion to expel
aliens as he “shall think necessary for the publick Secur­
ity.” 33 Geo. III, ch. 4, §18, in 39 Eng. Stat. at Large 16.
Both the Fifth Congress and the States thoroughly de-
bated the Alien Friends Act. Virginia and Kentucky enacted
resolutions (anonymously drafted by Madison and Jeffer­
son) opposing the Act, while 10 States enacted counter-
resolutions condemning the views of Virginia and Ken­
tucky. See Fehlings, Storm on the Constitution: The First
Deportation Law, 10 Tulsa J. Comp. & Int’l L. 63, 85, 103
(2002).
The Jeffersonian Democratic-Republicans, who viewed
the Alien Friends Act as a threat to their party and the
institution of slavery,4 raised a number of constitutional
——————
4 The Jeffersonian Democratic-Republicans who opposed the Alien
Friends Act primarily represented slave States, and their party’s
8 SESSIONS v. DIMAYA
THOMAS, J., dissenting
objections. Some of the Jeffersonians argued that the
Alien Friends Act violated the Fifth Amendment’s Due
Process Clause. They complained that the Act failed to
provide aliens with all the accouterments of a criminal
trial. See, e.g., Kentucky Resolutions ¶6, in 4 The Debates
in the Several Conventions on the Adoption of the Federal
Constitution 541–542 (J. Elliot ed. 1836) (Elliot’s Debates);
8 Annals of Cong. 1982–1983 (1798) (statement of Rep.
Gallatin); Madison’s Report on the Virginia Resolutions
(Jan. 7, 1800), in 6 Writings of James Madison 361–362
(G. Hunt ed. 1906) (Madison’s Report).5
The Federalists gave two primary responses to this due
process argument. First, the Federalists argued that the
rights of aliens were governed by the law of nations, not
the Constitution. See, e.g., Randolph, Debate on Virginia
Resolutions, in The Virginia Report of 1799–1800, pp. 34–
35 (1850) (Virginia Debates) (statement of George K.
Taylor) (arguing that aliens “were not a party to the [Con­
stitution]” and that “cases between the government and
——————
political strength came from the South. See Fehlings, Storm on the
Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Int’l L.
63, 84 (2002). The Jeffersonians opposed any federal control over
immigration, which their constituents feared would be used to pre-empt
State laws that prohibited the entry of free blacks. Id., at 84–85; see
also Berns, Freedom of the Press and the Alien and Sedition Laws: A
Reappraisal, 1970 S. Ct. Rev. 109, 116 (“Whether pro- or anti-slavery,
most southerners, including Jefferson and Madison . . . were united
behind a policy of denying to the national government any competence
to deal with the question of slavery”). The fear was that “mobile free
Negroes would intermingle with slaves, encourage them to run away,
and foment insurrection.” I. Berlin, Slaves Without Masters 92 (1974).
5 The Jeffersonians also argued that the Alien Friends Act violated
due process because, if aliens disobeyed the President’s orders to leave
the country, they could be convicted of a crime and imprisoned without
a trial. See, e.g., Kentucky Resolutions ¶6, 4 Elliot’s Debates 541. That
charge was false. The Alien Friends Act gave federal courts jurisdiction
over alleged violations of the President’s orders. See §4, 1 Stat. 571.
Cite as: 584 U. S. ____ (2018) 9
THOMAS, J., dissenting
aliens . . . arise under the law of nations”); id., at 100(statement of William Cowan) (identifying the source of
rights “as to citizens, the Constitution; as to aliens, the
law of nations”); A. Addison, A Charge to the Grand Juries
of the County Courts of the Fifth Circuit of the State of
Pennsylvania 18 (1799) (Charge to the Grand Juries)
(“[T]he Constitution leaves aliens, as in other countries, to
the protection of the general principles of the law of na­
tions”); Answer to the Resolutions of the State of Ken­
tucky, Oct. 29, 1799, in 4 Records of the Governor and
Council of the State of Vermont 528 (1876) (denying “that
aliens had any rights among us, except what they derived
from the law of nations, and rights of hospitality”). The
law of nations imposed no enforceable limits on a nation’s
power to remove aliens. See, e.g., 1 E. de Vattel, Law of
Nations, §§230–231, pp. 108–109 (J. Chitty et al. transl.
and ed. 1883).
Second, the Federalists responded that the expulsion of
aliens “did not touch life, liberty, or property.” Virginia
Debates 34. The founding generation understood the
phrase “life, liberty, or property” to refer to a relatively
narrow set of core private rights that did not depend on
the will of the government. See Wellness Int’l Network,
Ltd. v. Sharif, 575 U. S. ___, ___–___ (2015) (THOMAS, J.,
dissenting) (slip op., at 9–10); Nelson, Adjudication in the
Political Branches, 107 Colum. L. Rev. 559, 566–568
(2007) (Nelson). Quasi-private rights—“privileges” or
“franchises” bestowed by the government on individuals—
did not qualify and could be taken away without judicial
process. See B&B Hardware, Inc. v. Hargis Industries,
Inc., 575 U. S. ___, ___ (2015) (THOMAS, J., dissenting)
(slip op., at 12); Nelson 567–569. The Federalists argued
that an alien’s right to reside in this country was one such
privilege. See, e.g., Virginia Debates 34 (arguing that
“ordering away an alien . . . was not a matter of right, but
of favour,” which did not require a jury trial); Report of the
10 SESSIONS v. DIMAYA
THOMAS, J., dissenting
Select Committee of the House of Representatives, Made
to the House of Representatives on Feb. 21, 1799, 9 Annals
of Cong. 2987 (1799) (stating that aliens “remain in the
country . . . merely as matter of favor and permission” and
can be removed at any time without a criminal trial);
Charge to the Grand Juries 11–13 (similar). According to
the Minority Address of the Virginia Legislature (anony­
mously drafted by John Marshall), “[T]he right of remain­
ing in our country is vested in no alien; he enters and
remains by the courtesy of the sovereign power, and that
courtesy may at pleasure be withdrawn” without judicial
process. Address of the Minority in the Virginia Legisla­
ture to the People of that State 9–10 (1799) (Virginia
Minority Address). Unlike “a grant of land,” the
“[a]dmission of an alien to residence . . . is revocable, like a
permission.” A. Addison, Analysis of the Report of the
Committee of the Virginia Assembly 23 (1800). Removing
a resident alien from the country did not affect “life, lib­
erty, or property,” the Federalists argued, until the alien
became a naturalized citizen. See id., at 23–24; Charge to
the Grand Juries 11–13. That the alien’s permanent
residence was conferred by statute would not have made a
difference. See Nelson 571, 580–582; Teva Pharmaceuti-
cals USA, Inc. v. Sandoz, Inc., 574 U. S. ___, ___, n. 2
(2015) (THOMAS, J., dissenting) (slip op., at 9, n. 2).
After the Alien Friends Act lapsed in 1800, Congress did
not enact another removal statute for nearly a century.
The States enacted their own removal statutes during this
period, see G. Neuman, Strangers to the Constitution 19–
43 (1996), and I am aware of no decision questioning the
legality of these statutes under State due-process or law­
of-the-land provisions. Beginning in the late 19th century,
the Federal Government reinserted itself into the regula­
tion of immigration. When this Court was presented with
constitutional challenges to Congress’ removal laws, it
initially rejected them for many of the same reasons that
Cite as: 584 U. S. ____ (2018) 11
THOMAS, J., dissenting
Marshall and the Federalists had cited in defense of the
Alien Friends Act. Although the Court rejected the Feder­
alists’ argument that resident aliens do not enjoy constitu­
tional rights, see Wong Wing v. United States, 163 U. S.
228, 238 (1896), it agreed that civil deportation statutes do
not implicate “life, liberty, or property,” see, e.g., Harisi-
ades v. Shaughnessy, 342 U. S. 580, 584–585 (1952) (“[T]hat
admission for permanent residence confers a ‘vested right’
on the alien [is] not founded in precedents of this Court”);
United States ex rel. Turner v. Williams, 194 U. S. 279,
290 (1904) (“[T]he deportation of an alien who is found to
be here in violation of law is not a deprivation of liberty
without due process of law”); Fong Yue Ting, 149 U. S., at
730 (“[Deportation] is but a method of enforcing the return
to his own country of an alien who has not complied with
[statutory] conditions . . . . He has not, therefore, been
deprived of life, liberty, or property without due process of
law”); id., at 713–715 (similar). Consistent with this
understanding, “federal immigration laws from 1891 until
1952 made no express provision for judicial review.”
Demore, 538 U. S., at 538 (opinion of O’Connor, J.).
It was not until the 20th century that this Court held
that nonpenal removal statutes could violate the Due
Process Clause. See Wong Yang Sung v. McGrath, 339
U. S. 33, 49 (1950). That ruling opened the door for the
Court to apply the then-nascent vagueness doctrine to
immigration statutes. But the Court upheld vague stand­
ards in immigration laws that it likely would not have
tolerated in criminal statutes. See, e.g., Boutilier v. INS,
387 U. S. 118, 122 (1967) (“ ‘psychopathic personality’ ”);
Jordan v. De George, 341 U. S. 223, 232 (1951) (“ ‘crime
involving moral turpitude’ ”); cf. Mahler, supra, at 40
(“ ‘undesirable residents’ ”). Until today, this Court has
never held that an immigration statute is unconstitution­
ally vague.
Thus, for more than a century after the founding, it was,
12 SESSIONS v. DIMAYA
THOMAS, J., dissenting
at best, unclear whether federal removal statutes could
violate the Due Process Clause. And until today, this
Court had never deemed a federal removal statute void for
vagueness. Given this history, it is difficult to conclude
that a ban on vague removal statutes is a “settled usag[e]
and mod[e] of proceeding existing in the common and
statute law of England, before the emigration of our ances­
tors” protected by the Fifth Amendment’s Due Process
Clause. Murray’s Lessee, 18 How., at 277.
B
Instead of a longstanding procedure under Murray’s
Lessee, perhaps the vagueness doctrine is really a way to
enforce the separation of powers—specifically, the doctrine
of nondelegation. See Chapman & McConnell, Due Pro­
cess as Separation of Powers, 121 Yale L. J. 1672, 1806
(2012) (“Vague statutes have the effect of delegating law­
making authority to the executive”). Madison raised a
similar objection to the Alien Friends Act, arguing that its
expansive language effectively allowed the President to
exercise legislative (and judicial) power. See Madison’s
Report 369–371. And this Court’s precedents have occa­
sionally described the vagueness doctrine in terms of
nondelegation. See, e.g., Grayned v. City of Rockford, 408
U. S. 104, 108–109 (1972) (“A vague law impermissibly
delegates basic policy matters”). But they have not been
consistent on this front. See, e.g., Aptheker v. Secretary of
State, 378 U. S. 500, 516 (1964) (“ ‘The objectionable qual-
ity of vagueness . . . does not depend upon . . . unchanneled
delegation of legislative powers’ ”); Maynard v. Cartwright,
486 U. S. 356, 361 (1988) (“Objections to vagueness under
the Due Process Clause rest on the lack of notice”).
I agree that the Constitution prohibits Congress from
delegating core legislative power to another branch. See
Department of Transportation v. Association of American
Railroads, 575 U. S. ___, ___ (2015) (AAR) (THOMAS, J.,
Cite as: 584 U. S. ____ (2018) 13
THOMAS, J., dissenting
concurring in judgment) (slip op., at 3) (“Congress improp­
erly ‘delegates’ legislative power when it authorizes an
entity other than itself to make a determination that
requires an exercise of legislative power”); accord, Whit-
man v. American Trucking Assns., Inc., 531 U. S. 457, 487
(2001) (THOMAS, J., concurring). But I locate that princi­
ple in the Vesting Clauses of Articles I, II, and III—not in
the Due Process Clause. AAR, supra, at ___–___ (opinion
of THOMAS, J.) (slip op., at 2–3); see also Hampton v. Mow
Sun Wong, 426 U. S. 88, 123 (1976) (Rehnquist, J., dis­
senting) (“[T]hat there was an improper delegation of
authority . . . has not previously been thought to depend
upon the procedural requirements of the Due Process
Clause”). In my view, impermissible delegations of legis­
lative power violate this principle, not just delegations
that deprive individuals of “life, liberty, or property,”
Amdt. 5.
Respondent does not argue that §16(b), as incorporated
by the INA, is an impermissible delegation of power. See
Brief for Respondent 50 (stating that “there is no delega­
tion question” in this case). I would not reach that ques­
tion here, because this case can be resolved on narrower
grounds. See Part I–C, infra. But at first blush, it is not
at all obvious that the nondelegation doctrine would jus­
tify wholesale invalidation of §16(b).
If §16(b) delegates power in this context, it delegates
power primarily to the Executive Branch entities that
administer the INA—namely, the Attorney General, im­
migration judges, and the Board of Immigration Appeals
(BIA). But Congress does not “delegate” when it merely
authorizes the Executive Branch to exercise a power that
it already has. See AAR, supra, at ___ (opinion of
THOMAS, J.) (slip op., at 3). And there is some founding-
era evidence that “the executive Power,” Art. II, §1, in­
cludes the power to deport aliens.
Blackstone—one of the political philosophers whose
14 SESSIONS v. DIMAYA
THOMAS, J., dissenting
writings on executive power were “most familiar to the
Framers,” Prakash & Ramsey, The Executive Power Over
Foreign Affairs, 111 Yale L. J. 231, 253 (2001)—described
the power to deport aliens as executive and located it with
the King. Alien friends, Blackstone explained, are “liable
to be sent home whenever the king sees occasion.” 1
Commentaries on the Laws of England 252 (1765). When
our Constitution was ratified, moreover, “[e]minent Eng­
lish judges, sitting in the Judicial Committee of the Privy
Council, ha[d] gone very far in supporting the . . . expul­
sion, by the executive authority of a colony, of aliens.”
Demore, 538 U. S., at 538 (opinion of O’Connor, J.) (quot­
ing Fong Yue Ting, 149 U. S., at 709). Some of the Feder­
alists defending the Alien Friends Act similarly argued
that the President had the power to remove aliens. See,
e.g., Virginia Debates 35 (statement of George K. Taylor)
(arguing that the power to remove aliens is “most properly
entrusted” with the President, since “[h]e, by the Constitu­
tion, was bound to execute the laws” and is “the executive
officer, with whom all persons and bodies whatever were
accustomed to communicate”); Virginia Minority Address
9 (arguing that the removal of aliens “is a measure of
general safety, in its nature political and not forensic, the
execution of which is properly trusted to the department
which represents the nation in all its interior relations”);
Charge to the Grand Juries 29–30 (“As a measure of na­
tional defence, this discretion, of expulsion or indulgence,
seems properly vested in the branch of the government
peculiarly charged with the direction of the executive
powers, and of our foreign relations. There is in it a mix­
ture of external policy, and of the law of nations, that
justifies this disposition”). More recently, this Court
recognized that “[r]emoval decisions” implicate “our cus­
tomary policy of deference to the President in matters of
foreign affairs” because they touch on “our relations with
foreign powers and require consideration of changing
Cite as: 584 U. S. ____ (2018) 15
THOMAS, J., dissenting
political and economic circumstances.” Jama v. Immigra-
tion and Customs Enforcement, 543 U. S. 335, 348 (2005)
(internal quotation marks omitted). Taken together, this
evidence makes it difficult to confidently conclude that the
INA, through §16(b), delegates core legislative power to
the Executive.
Instead of the Executive, perhaps §16(b) impermissibly
delegates power to the Judiciary, since the Courts of Ap­
peals often review the BIA’s application of §16(b). I as­
sume that, at some point, a statute could be so devoid of
content that a court tasked with interpreting it “would
simply be making up a law—that is, exercising legislative
power.” Lawson, Delegation and Original Meaning, 88 Va.
L. Rev. 327, 339 (2002); see id., at 339–340 (providing
examples such as a gibberish-filled statute or a statute
that requires “ ‘goodness and niceness’ ”). But I am not
confident that our modern vagueness doctrine—which
focuses on whether regulations of individual conduct
provide “fair warning,” are “clearly defined,” and do not
encourage “arbitrary and discriminatory enforcement,”
Grayned, 408 U. S., at 108; Kolender, 461 U. S., at 357—
accurately demarcates the line between legislative and
judicial power. The Founders understood that the inter­
pretation of legal texts, even vague ones, remained an
exercise of core judicial power. See Perez v. Mortgage
Bankers Assn., 575 U. S. ___, ___–___ (2015) (THOMAS, J.,
concurring in judgment) (slip op., at 8–9); Hamburger, The
Constitution’s Accommodation of Social Change, 88 Mich.
L. Rev. 239, 303–310 (1989). Courts were expected to
clarify the meaning of such texts over time as they applied
their terms to specific cases. See id., at 309–310; Nelson,
Originalism and Interpretive Conventions, 70 U. Chi. L.
Rev. 519, 526 (2003). Although early American courts
declined to apply vague or unintelligible statutes as ap­
propriate in individual cases, they did not wholesale inval­
idate them as unconstitutional delegations of legislative
16 SESSIONS v. DIMAYA
THOMAS, J., dissenting
power. See Johnson, 576 U. S., at ___–___, and n. 3 (opin­
ion of THOMAS, J.) (slip op., at 10–11, and n. 3).
C
1
I need not resolve these historical questions today, as
this case can be decided on narrower grounds. If the
vagueness doctrine has any basis in the original meaning
of the Due Process Clause, it must be limited to case-by­
case challenges to particular applications of a statute.
That is what early American courts did when they applied
the rule of lenity. See id., at ___ (slip op., at 10). And that
is how early American courts addressed constitutional
challenges to statutes more generally. See ibid. (“[T]here
is good evidence that [antebellum] courts . . . understood
judicial review to consist ‘of a refusal to give a statute
effect as operative law in resolving a case,’ a notion quite
distinct from our modern practice of ‘ “strik[ing] down”
legislation’ ” (quoting Walsh, Partial Unconstitutionality,
85 N. Y. U. L. Rev. 738, 756 (2010)).
2
This Court’s precedents likewise recognize that, outside
the First Amendment context, a challenger must prove
that the statute is vague as applied to him. See Holder v.
Humanitarian Law Project, 561 U. S. 1, 18–19 (2010);
United States v. Williams, 553 U. S. 285, 304 (2008);
Maynard, 486 U. S., at 361; Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U. S. 489, 495, and n. 7 (1982)
(collecting cases). Johnson did not overrule these prece­
dents. While Johnson weakened the principle that a facial
challenge requires a statute to be vague “in all applica­
tions,” 576 U. S., at ___ (slip op., at 11) (emphasis added),
it did not address whether a statute must be vague as
applied to the person challenging it. That question did not
arise because the Court concluded that ACCA’s residual
Cite as: 584 U. S. ____ (2018) 17
THOMAS, J., dissenting
clause was vague as applied to the crime at issue there:
unlawful possession of a short-barreled shotgun. See id.,at ___ (slip op., at 9).
In my view, §16(b) is not vague as applied to respond­
ent. When respondent committed his burglaries in 2007
and 2009, he was “sufficiently forewarned . . . that the
statutory consequence . . . is deportation.” De George, 341
U. S., at 232. At the time, courts had “unanimous[ly]”
concluded that residential burglary is a crime of violence,
and not “a single opinion . . . ha[d] held that [it] is not.”
United States v. M. C. E., 232 F. 3d 1252, 1255–1256 (CA9
2000); see also United States v. Davis, 881 F. 2d 973, 976
(CA11 1989) (explaining that treating residential burglary
as a crime of violence was “[i]n accord with common law
tradition and the settled law of the federal circuits”).
Residential burglary “ha[d] been considered a violent
offense for hundreds of years . . . because of the potential
for mayhem if burglar encounters resident.” United States
v. Pinto, 875 F. 2d 143, 144 (CA7 1989). The Model Penal
Code had recognized that risk, see ALI, Model Penal Code
§221.1, Comment 3(c), p. 75 (1980); the Sentencing Com­
mission had recognized that risk; see United States Sen­
tencing Commission, Guidelines Manual §4B1.2(a)(2)
(Nov. 2006); and this Court had repeatedly recognized that
risk, see, e.g., James v. United States, 550 U. S. 192, 203
(2007); Taylor v. United States, 495 U. S. 575, 588 (1990).
In Leocal v. Ashcroft, 543 U. S. 1 (2004), this Court unan­
imously agreed that burglary is the “classic example” of a
crime of violence under §16(b), because it “involves a
substantial risk that the burglar will use force against a
victim in completing the crime.” Id., at 10.
That same risk is present with respect to respondent’s
statute of conviction—first-degree residential burglary,
Cal. Penal Code Ann. §§459, 460(a) (West 1999). The
California Supreme Court has explained that the State’s
burglary laws recognize “the dangers to personal safety
18 SESSIONS v. DIMAYA
THOMAS, J., dissenting
created by the usual burglary situation.” People v. Davis,
18 Cal. 4th 712, 721, 958 P. 2d 1083, 1089 (1998) (empha­
sis added). “ ‘[T]he fact that a building is used as a home
. . . increases such danger,’ ” which is why California ele­
vates residential burglary to a first-degree offense. People
v. Rodriguez, 122 Cal. App. 4th 121, 133, 18 Cal. Rptr. 3d
550, 558 (2004); see also People v. Wilson, 208 Cal. App. 3d
611, 615, 256 Cal. Rptr. 422, 425 (1989) (“[T]he higher
degree . . . is intended to prevent those situations which
are most dangerous, most likely to cause personal injury”
(emphasis deleted)). Although unlawful entry is not an
element of the offense, courts “unanimous[ly]” agree that
the offense still involves a substantial risk of physical
force. United States v. Avila, 770 F. 3d 1100, 1106 (CA4
2014); accord, United States v. Maldonado, 696 F. 3d 1095,
1102, 1104 (CA10 2012); United States v. Scanlan, 667
F. 3d 896, 900 (CA7 2012); United States v. Echeverria–
Gomez, 627 F. 3d 971, 976 (CA5 2010); United States v.
Becker, 919 F. 2d 568, 573 (CA9 1990). First-degree resi­
dential burglary requires entry into an inhabited dwelling,
with the intent to commit a felony, against the will of the
homeowner—the key elements that create the risk of
violence. See United States v. Park, 649 F. 3d 1175, 1178–
1180 (CA9 2011); Avila, supra, at 1106–1107; Becker,
supra, at 571, n. 5. As this Court has explained, “[t]he
main risk of burglary arises not from the simple physical
act of wrongfully entering onto another’s property, but
rather from the possibility of a face-to-face confrontation
between the burglar and a third party.” James, supra, at
203.
Drawing on Johnson and the decision below, the Court
suggests that residential burglary might not be a crime of
violence because “ ‘only about seven percent of burglaries
actually involve violence.’ ” Ante, at 9, n. 3 (citing Dimaya
v. Lynch, 803 F. 3d 1110, 1116, n. 7 (CA9 2015)); see Bu­
reau of Justice Statistics, S. Catalano, National Crime
Cite as: 584 U. S. ____ (2018) 19
THOMAS, J., dissenting
Victimization Survey: Victimization During Household
Burglary 1 (Sept. 2010), https://www.bjs.gov/content/pub/
pdf/vdhb.pdf (as last visited Apr. 13, 2018). But this
statistic—which measures actual violence against a mem­
ber of the household, see id., at 1, 12—is woefully underin­
clusive. It excludes other potential victims besides house­
hold members—for example, “a police officer, or a
bystande[r] who comes to investigate,” James, supra, at
203. And §16(b) requires only a risk of physical force, not
actual physical force, and that risk would seem to be
present whenever someone is home during the burglary.
Further, Johnson is not conclusive because, unlike ACCA’s
residual clause, §16(b) covers offenses that involve a sub­
stantial risk of physical force “against the person or prop-
erty of another.” (Emphasis added.) Surely the ordinary
case of residential burglary involves at least one of these
risks. According to the statistics referenced by the Court,
most burglaries involve either a forcible entry (e.g., break­
ing a window or slashing a door screen), an attempted
forcible entry, or an unlawful entry when someone is
home. See Bureau of Justice Statistics, supra, at 2 (Table
1). Thus, under any metric, respondent’s convictions for
first-degree residential burglary are crimes of violence
under §16(b).
3
Finally, if facial vagueness challenges are ever appro­
priate, I adhere to my view that a law is not facially vague
“ ‘[i]f any fool would know that a particular category of
conduct would be within the reach of the statute, if there
is an unmistakable core that a reasonable person would
know is forbidden by the law.’ ” Morales, 527 U. S., at 112(THOMAS, J., dissenting) (quoting Kolender, 461 U. S., at370–371 (White, J., dissenting)). The residual clause of
ACCA had such a core. See Johnson, 576 U. S., at ___
(slip op., at 10); id., at ___–___ (ALITO, J., dissenting) (slip
20 SESSIONS v. DIMAYA
THOMAS, J., dissenting
op., at 14–15). And §16(b) has an even wider core, as THE
CHIEF JUSTICE explains. Thus, the Court should not have
invalidated §16(b), either on its face or as applied to
respondent.
II
Even taking the vagueness doctrine and Johnson at face
value, I disagree with the Court’s decision to invalidate
§16(b). The sole reason that the Court deems §16(b) un­
constitutionally vague is because it reads the statute as
incorporating the categorical approach—specifically, the
“ordinary case” approach from ACCA’s residual clause.
Although the Court mentions “[t]wo features” of §16(b)
that make it vague—the ordinary-case approach and an
imprecise risk standard—the Court admits that the sec­
ond feature is problematic only in combination with the
first. Ante, at 8. Without the ordinary-case approach, the
Court “do[es] not doubt” the constitutionality of §16(b).
Ante, at 10.
But if the categorical approach renders §16(b) unconsti­
tutionally vague, then constitutional avoidance requires
us to make a reasonable effort to avoid that interpretation.
And a reasonable alternative interpretation is available:
Instead of asking whether the ordinary case of an alien’s
offense presents a substantial risk of physical force, courts
should ask whether the alien’s actual underlying conduct
presents a substantial risk of physical force. I will briefly
discuss the origins of the categorical approach and then
explain why the Court should abandon it for §16(b).
A
1
The categorical approach originated with Justice
Blackmun’s opinion for the Court in Taylor v. United
States, 495 U. S. 575 (1990). The question in Taylor was
whether ACCA’s reference to “burglary” meant burglary
Cite as: 584 U. S. ____ (2018) 21
THOMAS, J., dissenting
as defined by state law or burglary in the generic sense.
After “devoting 10 pages of [its] opinion to legislative
history,” id., at 603 (Scalia, J., concurring in part and
concurring in judgment), and finding that Congress had
made “an inadvertent casualty in [the] complex drafting
process,” id., at 589–590 (majority opinion), the Court
concluded that ACCA referred to burglary in the generic
sense, id., at 598. The Court then addressed how the
Government would prove that a defendant was convicted
of generic burglary, as opposed to another offense. Id., at
599–602. Taylor rejected the notion that the Government
could introduce evidence about the “particular facts” of the
defendant’s underlying crime. Id., at 600. Instead, the
Court adopted a “categorical approach,” which focused
primarily on the “statutory definition of the prior offense.”
Id., at 602.
Although Taylor was interpreting one of ACCA’s enu­
merated offenses, this Court later extended the categorical
approach to ACCA’s residual clause. See James, 550
U. S., at 208. That extension required some reworking.
Because ACCA’s enumerated-offenses clause asks whether
a prior conviction “is burglary, arson, or extortion,” 18
U. S. C. §924(e)(2)(B)(ii), Taylor instructed courts to focus
on the definition of the underlying crime. The residual
clause, by contrast, asks whether a prior conviction “in­
volves conduct that presents a serious potential risk of
physical injury to another.” §924(e)(2)(B)(ii). Thus, the
Court held that the categorical approach for the residual
clause asks “whether the conduct encompassed by the
elements of the offense, in the ordinary case, presents a
serious potential risk of injury to another.” James, supra,
at 208 (emphasis added). This “ordinary case” approach
allowed courts to apply the residual clause without inquir­
ing into the individual facts of the defendant’s prior crime.
Taylor gave a few reasons why the categorical approach
was the correct reading of ACCA, see 495 U. S., at 600–
22 SESSIONS v. DIMAYA
THOMAS, J., dissenting
601, but the “heart of the decision” was the Court’s con­
cern with limiting the amount of evidence that the parties
could introduce at sentencing. Shepard v. United States,
544 U. S. 13, 23 (2005). Specifically, the Court was wor­
ried about potential violations of the Sixth Amendment. If
the parties could introduce evidence about the defendant’s
underlying conduct, then sentencing proceedings might
devolve into a full-blown minitrial, with factfinding by the
judge instead of the jury. See id., at 24–26; Taylor, supra,
at 601. While this Court’s decision in Almendarez-Torres
v. United States, 523 U. S. 224 (1998), allows judges to
find facts about a defendant’s prior convictions, a full-
blown minitrial would look “too much like” the kind of
factfinding that the Sixth Amendment requires the jury to
conduct. Shepard, 544 U. S., at 25. By construing ACCA
to require a categorical approach, then, the Court was
following “[t]he rule of reading statutes to avoid serious
risks of unconstitutionality.” Ibid.2
I disagreed with the Court’s decision to extend the
categorical approach to ACCA’s residual clause. See
James, 550 U. S., at 231–232 (dissenting opinion). The
categorical approach was an “ ‘unnecessary exercise,’ ” I
explained, because it created the same Sixth Amendment
problem that it tried to avoid. Id., at 231. Absent waiver,
a defendant has the right to have a jury find “every fact
that is by law a basis for imposing or increasing punish­
ment,” including the fact of a prior conviction. Apprendi v.
New Jersey, 530 U. S. 466, 501 (2000) (THOMAS, J., concur­
ring). The exception recognized in Almendarez-Torres for
prior convictions is an aberration, has been seriously
undermined by subsequent precedents, and should be
reconsidered. See Mathis v. United States, 579 U. S. ___,
___ (2016) (THOMAS, J., concurring) (slip op., at 1); Shep-
ard, supra, at 27–28 (THOMAS, J., concurring in part and
Cite as: 584 U. S. ____ (2018) 23
THOMAS, J., dissenting
concurring in judgment). In my view, if the Government
wants to enhance a defendant’s sentence based on his
prior convictions, it must put those convictions in the
indictment and prove them to a jury beyond a reasonable
doubt.6
B
My objection aside, the ordinary-case approach soon
created problems of its own. The Court’s attempt to avoid
the Scylla of the Sixth Amendment steered it straight into
the Charybdis of the Fifth. The ordinary-case approach
that was created to honor the individual right to a jury is
now, according to the Court, so vague that it deprives
individuals of due process.
I see no good reason for the Court to persist in reading
the ordinary-case approach into §16(b). The text of §16(b)
does not mandate the ordinary-case approach, the con­
cerns that led this Court to adopt it do not apply here, and
there are no prudential reasons for retaining it. In my
view, we should abandon the categorical approach for
§16(b).
1
The text of §16(b) does not require a categorical ap­
proach. The INA declares an alien deportable if he is
——————
6 The Sixth Amendment is, thus, not a reason to maintain the cate­
gorical approach in criminal cases. Contra, ante, at 13–14 (plurality
opinion). Even if it were, the Sixth Amendment does not apply in
immigration cases like this one. See Part II–B–2, infra. The plurality
contends that, if it must contort the text of §16(b) to avoid a Sixth
Amendment problem in criminal cases, then it must also contort the
text of §16(b) in immigration cases, even though the Sixth Amendment
problem does not arise in the immigration context. See ante, at 13–14,
15. But, as I have explained elsewhere, this “lowest common denomi­
nator” approach to constitutional avoidance is both ahistorical and
illogical. See Clark v. Martinez, 543 U. S. 371, 395–401 (2005) (dissent­
ing opinion).
24 SESSIONS v. DIMAYA
THOMAS, J., dissenting
“convicted of an aggravated felony” after he is admitted to
the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Aggra­
vated felonies include “crime[s] of violence” as defined in
§16. §1101(a)(43)(F). Section 16, in turn, defines crimes of
violence as follows:
“(a) an offense that has as an element the use, at­
tempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical
force against the person or property of another may be
used in the course of committing the offense.”
At first glance, §16(b) is not clear about the precise
question it poses. On the one hand, the statute might
refer to the metaphysical “nature” of the offense and ask
whether it ordinarily involves a substantial risk of physi­
cal force. On the other hand, the statute might refer to
the underlying facts of the offense that the offender com­
mitted; the words “by its nature,” “substantial risk,” and
“may” would mean only that an offender who engages in
risky conduct cannot benefit from the fortuitous fact that
physical force was not actually used during his offense.
The text can bear either interpretation. See Nijhawan v.
Holder, 557 U. S. 29, 33–34 (2009) (“[I]n ordinary speech
words such as ‘crime,’ ‘felony,’ ‘offense,’ and the like some­
times refer to a generic crime . . . and sometimes refer to
the specific acts in which an offender engaged on a specific
occasion”). It is entirely natural to use words like “nature”
and “offense” to refer to an offender’s actual underlying
conduct.7
——————
7 See, e.g., 18 U. S. C. §3553(a)(2) (directing sentencing judges to con­
sider “the nature and circumstances of the offense”); Schware v. Board
of Bar Examiners of N. M., 353 U. S. 232, 242–243 (1957) (describing
“the nature of the offense” committed by a bar applicant as “recruiting
Cite as: 584 U. S. ____ (2018) 25
THOMAS, J., dissenting
Although both interpretations are linguistically possi­
ble, several factors indicate that the underlying-conduct
approach is the better one. To begin, §16(b) asks whether
an offense “involves” a substantial risk of force. The word
“involves” suggests that the offense must necessarily
include a substantial risk of force. See The New Oxford
Dictionary of English 962 (2001) (“include (something) as a
necessary part or result”); Random House Dictionary of
the English Language 1005 (2d ed. 1987) (“1. to include as
——————
persons to go overseas to aid the Loyalists in the Spanish Civil War”);
TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 482
(1993) (O’Connor, J., dissenting) (describing “the nature of the offense
at issue” as not “involving grave physical injury” but rather as a “busi­
ness dispute between two companies in the oil and gas industry”);
United States v. Broce, 488 U. S. 563, 585–587 (1989) (Blackmun, J.,
dissenting) (describing “the nature of the charged offense” in terms of
the specific facts alleged in the indictment); People v. Golba, 273 Mich.
App. 603, 611, 729 N. W. 2d 916, 922 (2007) (“[T]he underlying factual
basis for a conviction governs whether the offense ‘by its nature consti­
tutes a sexual offense against an individual who is less than 18 years of
age.’ ” (quoting Mich. Comp. Laws §28.722(e)(xi) (2006))); A Fix for
Animal Abusers, Boston Herald, Nov. 22, 2017, p. 16 (“prosecutors were
so horrified at the nature of his offense—his torture of a neighbor’s
dog”); P. Ward, Attorney of Convicted Ex-Official Accuses Case’s Judge,
Pittsburgh Post-Gazette, Nov. 10, 2015, p. B1 (identifying the “nature
of his offense” as “taking money from an elderly, widowed client, and
giving it to campaign funds”); Cross-Burning–Article Painted an
Inaccurate Picture of Young Man in Question, Seattle Times, Aug. 12,
1991, p. A9 (“[The defendant] took no steps to prevent the cross that
was burned from being constructed on his family’s premises and later
. . . assisted in concealing a second cross . . . . This was the nature of
his offense”); N. Libman, A Parole/Probation Officer Talks With Norma
Libman, Chicago Tribune, May 29, 1988, p. I31 (describing “the nature
of the offense” as “not serious” if “there was no definitive threat on life”
or if “the dollar- and cents- amount was not great”); E. Walsh, District–
U. S. Argument Delays Warrant for Escapee’s Arrest, Washington Post,
May 29, 1986, p. C1 (describing “the nature of Murray’s alleged of­
fenses” as “point[ing] at two officers a gun that was later found to con-
tain one round of ammunition”).
26 SESSIONS v. DIMAYA
THOMAS, J., dissenting
a necessary circumstance, condition, or consequence”);
Oxford American Dictionary 349 (1980) (“1. to contain
within itself, to make necessary as a condition or result”).
That condition is always satisfied if the Government must
prove that the alien’s underlying conduct involves a sub­
stantial risk of force, but it is not always satisfied if the
Government need only prove that the “ordinary case”
involves such a risk. See Johnson, 576 U. S., at ___
(ALITO, J., dissenting) (slip op., at 12). Tellingly, the other
aggravated felonies in the INA that use the word “in­
volves” employ the underlying-conduct approach. See 8
U. S. C. §1101(a)(43)(M)(i) (“an offense that involves fraud
or deceit in which the loss to the victim or victims exceeds
$10,000”); §1101(h)(3) (“any crime of reckless driving or of
driving while intoxicated or under the influence of alcohol
or of prohibited substances if such crime involves personal
injury to another”). As do the similarly worded provisions
of the Comprehensive Crime Control Act of 1984, the bill
that contained §16(b). See, e.g., 98 Stat. 2059 (elevating
the burden of proof for the release of “a person found not
guilty only by reason of insanity of an offense involving
bodily injury to, or serious damage to the property of,
another person, or involving a substantial risk of such
injury or damage”); id., at 2068 (establishing the sentence
for drug offenses “involving” specific quantities and types
of drugs); id., at 2137 (defining violent crimes in aid of
racketeering to include “attempting or conspiring to com­
mit a crime involving maiming, assault with a dangerous
weapon, or assault resulting in serious bodily injury”).
A comparison of §16(b) and §16(a) further highlights
why the former likely adopts an underlying-conduct ap­
proach. Section 16(a) covers offenses that have the use,
attempted use, or threatened use of physical force “as an
element.” Because §16(b) covers “other” offenses and is
separated from §16(a) by the disjunctive word “or,” the
natural inference is that §16(b) asks a different question.
Cite as: 584 U. S. ____ (2018) 27
THOMAS, J., dissenting
In other words, §16(b) must require immigration judges to
look beyond the elements of an offense to determine
whether it involves a substantial risk of physical force.
But if the elements are insufficient, where else should
immigration judges look to determine the riskiness of an
offense? Two options are possible, only one of which is
workable.
The first option is to consult the underlying facts of the
alien’s crime and then assess its riskiness. This approach
would provide a definitive answer in every case. And
courts are already familiar with this kind of inquiry. Cf.
Johnson, supra, at ___ (slip op., at 12) (noting that “doz­
ens” of similarly worded laws ask courts to assess “the
riskiness of conduct in which an individual defendant
engages on a particular occasion”). Nothing suggests that
Congress imposed a more limited inquiry when it enacted
§16(b) in 1984. At the time, Congress had not yet enacted
ACCA’s residual clause, this Court had not yet created the
categorical approach, and this Court had not yet recog­
nized a Sixth Amendment limit on judicial factfinding at
sentencing, see Chambers v. United States, 555 U. S. 122,
132 (2009) (ALITO, J., concurring in judgment).
The second option is to imagine the “ordinary case” of
the alien’s crime and then assess the riskiness of that
hypothetical offense. But the phrase “ordinary case” does
not appear in the statute. And imagining the ordinary
case, the Court reminds us, is “hopeless[ly] indetermi­
na[te],” “wholly ‘speculative,’ ” and mere “guesswork.”
Ante, at 7, 24 (quoting Johnson, supra, at ___–___ (slip op.,
at 5, 7)); see also Chambers, supra, at 133 (opinion of
ALITO, J.) (observing that the categorical approach is
“nearly impossible to apply consistently”). Because courts
disfavor interpretations that make a statute impossible to
apply, see A. Scalia & B. Garner, Reading Law 63 (2012),
this Court should reject the ordinary-case approach for
§16(b) and adopt the underlying-facts approach instead.
28 SESSIONS v. DIMAYA
THOMAS, J., dissenting
See Johnson, supra, at ___ (ALITO, J., dissenting) (slip op.,
at 10) (“When another interpretation is ready at hand,
why should we assume that Congress gave the clause a
meaning that is impossible—or even, exceedingly diffi­
cult—to apply”).
2
That the categorical approach is not the better reading
of §16(b) should not be surprising, since the categorical
approach was never really about the best reading of the
text. As explained, this Court adopted that approach to
avoid a potential Sixth Amendment problem with sentenc­
ing judges conducting minitrials to determine a defend­
ant’s past conduct. But even assuming the categorical
approach solved this Sixth Amendment problem in crimi­
nal cases, no such problem arises in immigration cases.
“[T]he provisions of the Constitution securing the right of
trial by jury have no application” in a removal proceeding.
Turner, 194 U. S., at 290. And, in criminal cases, the
underlying-conduct approach would be perfectly constitu­
tional if the Government included the defendant’s prior
conduct in the indictment, tried it to a jury, and proved it
beyond a reasonable doubt. See Johnson, 576 U. S., at ___
(ALITO, J., dissenting) (slip op., at 12). Nothing in §16(b)
prohibits the Government from proceeding this way, so the
plurality is wrong to suggest that the underlying-conduct
approach would necessarily “ping-pong us from one consti­
tutional issue to another.” Ante, at 14.
If constitutional avoidance applies here at all, it re­
quires us to reject the categorical approach for §16(b).
According to the Court, the categorical approach is uncon­
stitutionally vague. And, all agree that the underlying-
conduct approach would not be. See Johnson, 576 U. S., at
___ (majority opinion) (slip op., at 12) (“[W]e do not doubt
the constitutionality of laws that call for the application of
a qualitative standard such as ‘substantial risk’ to real­
Cite as: 584 U. S. ____ (2018) 29
THOMAS, J., dissenting
world conduct”). Thus, if the underlying-conduct approach
is a “reasonabl[e]” interpretation of §16(b), it is our “plain
duty” to adopt it. United States ex rel. Attorney General v.
Delaware & Hudson Co., 213 U. S. 366, 407 (1909). And it
is reasonable, as explained above.
In Johnson, the Court declined to adopt the underlying-
conduct approach for ACCA’s residual clause. See 576
U. S., at ___–___ (slip op., at 12–13). The Court concluded
that the categorical approach was the only reasonable
reading of ACCA because the residual clause uses the
word “convictions.” Id., at ___ (slip op., at 13). The Court
also stressed the “utter impracticability of requiring a
sentencing court to reconstruct, long after the original
conviction, the conduct underlying that conviction.” Ibid.Neither of these arguments is persuasive with respect to
the INA. Moreover, this Court has already rejected them.
In Nijhawan, this Court unanimously concluded that one
of the aggravated felonies in the INA—“an offense that . . .
involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000,” §1101(a)(43)(M)(i)—applies the
underlying-conduct approach, not the categorical ap­
proach. 557 U. S., at 32. Although the INA also refers to
“convict[ions],” §1227(a)(2)(A)(iii), the Court was not
swayed by that argument. The word “convict[ion]” means
only that the defendant’s underlying conduct must “ ‘be
tied to the specific counts covered by the conviction,’ ” not
“acquitted or dismissed counts or general conduct.” Id., at
42. As for the supposed practical problems with proving
an alien’s prior conduct, the Court did not find that argu­
ment persuasive either. “[T]he ‘sole purpose’ of the ‘ag­
gravated felony’ inquiry,” the Court explained, “ ‘is to
ascertain the nature of a prior conviction; it is not an
invitation to relitigate the conviction itself.’ ” Ibid. And
because the INA places the burden on the Government to
prove an alien’s conduct by clear and convincing evidence,
§1229a(c)(3)(A), “uncertainties caused by the passage of
30 SESSIONS v. DIMAYA
THOMAS, J., dissenting
time are likely to count in the alien’s favor,” id., at 42.
There are additional reasons why the practical problems
identified in Johnson should not matter for §16(b)—even
assuming they should have mattered for ACCA’s residual
clause, see Lewis v. Chicago, 560 U. S. 205, 217 (2010)
(“[I]t is not our task to assess the consequences of each
approach and adopt the one that produces the least mis­
chief. Our charge is to give effect to the law Congress
enacted”). In a removal proceeding, any difficulties with
identifying an alien’s past conduct will fall on immigration
judges, not federal courts. But those judges are already
accustomed to finding facts about the conduct underlying
an alien’s prior convictions, since some of the INA’s aggra­
vated felonies employ the underlying-conduct approach.
The BIA has instructed immigration judges to determine
such conduct based on “any evidence admissible in re-
moval proceedings,” not just the elements of the offense or the
record of conviction. See Matter of Babaisakov, 24 I. & N.
Dec. 306, 307 (2007). No one has submitted any evidence
that the BIA’s approach has been “utter[ly] impracti­
cab[le]” or “daunting[ly] difficul[t]” in practice. Ante, at
15. And even if it were, “how much time the agency wants
to devote to the resolution of particular issues is . . . a
question for the agency itself.” Ali v. Mukasey, 521 F. 3d
737, 741 (CA7 2008). Hypothetical burdens on the BIA
should not influence how this Court interprets §16(b).
In short, we should not blithely assume that the reasons
why this Court adopted the categorical approach for
ACCA’s residual clause also apply to the INA’s list of
aggravated felonies. As Nijhawan explained, “the ‘aggra­
vated felony’ statute, unlike ACCA, contains some lan­
guage that refers to generic crimes and some language
that almost certainly refers to the specific circumstances
in which a crime was committed.” 557 U. S., at 38. “The
question” in each case is “to which category [the aggra-
vated felony] belongs.” Ibid. As I have explained, §16(b)
Cite as: 584 U. S. ____ (2018) 31
THOMAS, J., dissenting
belongs in the underlying-conduct category. Because that
is the better reading of §16(b)’s text—or at least a reason­
able reading—the Court should have adopted it here.
3
I see no prudential reason for maintaining the categori­
cal approach for §16(b). The Court notes that the Gov­
ernment “explicitly acknowledges” that §16(b) employs the
categorical approach. Ante, at 9. But we cannot permit
the Government’s concessions to dictate how we interpret
a statute, much less cause us to invalidate a statute en­
acted by a coordinate branch. See United States Nat.
Bank of Ore. v. Independent Ins. Agents of America, Inc.,
508 U. S. 439, 446–447 (1993); Young v. United States, 315
U. S. 257, 258–259 (1942). This Court’s “traditional prac­
tice” is to “refus[e] to decide constitutional questions”
when other grounds of decision are available, “whether or
not they have been properly raised before us by the par­
ties.” Neese v. Southern R. Co., 350 U. S. 77, 78 (1955)
(per curiam); see also Vermeule, Saving Constructions, 85
Geo. L. J. 1945, 1948–1949 (1997) (explaining that courts
commonly “decide an antecedent statutory issue, even one
waived by the parties, if its resolution could preclude a
constitutional claim”). This Court has raised potential
saving constructions “on our own motion” when they could
avoid a ruling on constitutional vagueness grounds, even
in cases where the Government was a party. United
States v. L. Cohen Grocery Co., 255 U. S. 81, 88 (1921).
We should have followed that established practice here.
Nor should stare decisis prevent us from rejecting the
categorical approach for §16(b). This Court has never held
that §16(b) incorporates the ordinary-case approach.
Although Leocal held that §16(b) incorporates a version of
the categorical approach, the Court must not feel bound by
that decision, as it largely overrules it today. See ante, at
22, n. 7. Surely the Court cannot credibly invoke stare
32 SESSIONS v. DIMAYA
THOMAS, J., dissenting
decisis to defend the categorical approach—the same
approach it says only a “lunatic” would continue to apply.
Ante, at 24. If the Court views the categorical approach
that way—the same way Johnson viewed it—then it must
also agree that “[s]tanding by [the categorical approach]
would undermine, rather than promote, the goals that
stare decisis is meant to serve.” 576 U. S., at ___ (slip op.,
at 15). That is especially true if the Court’s decision leads
to the invalidation of scores of similarly worded state and
federal statutes, which seems even more likely after today
than it did after Johnson. Instead of adhering to an inter­
pretation that it thinks unconstitutional and then using
that interpretation to strike down another statute, the
Court should have taken this opportunity to abandon the
categorical approach for §16(b) once and for all.
* * *
The Court’s decision today is triply flawed. It unneces­
sarily extends our incorrect decision in Johnson. It uses a
constitutional doctrine with dubious origins to invalidate
yet another statute (while calling into question countless
more). And it does all this in the name of a statutory
interpretation that we should have discarded long ago.
Because I cannot follow the Court down any of these rab­
bit holes, I respectfully dissent.