Supreme Court

Does The Constitution Apply To Immigrants? Supreme Court Will Start To Sort That Out.

Whether the Constitution protects immigrants from Jeff Sessions will be a thing this term.

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One of the most important issues the Supreme Court will have to decide during the Trump era is whether the Constitution protects immigrants from the whims of the executive branch.

There are basic legal protections we’d like to think that immigrants — be they documented or out of status — enjoy. Due process. Equal protection. It would be weird for a country based on the rule of law to abandon those foundational concepts on our soil just because a person living here wasn’t born here.

But immigrants, even legal permanent residents, can have those basic rights stripped away by a willful executive. On this first Monday in October, the Supreme Court will hear re-argument in Sessions v. Dimaya. At issue: whether the Immigration and Nationality Act’s definition of “aggravated felony” is unconstitutionally vague.

The Nationality Act allows for deportation of non-citizens for “crimes of violence.” James Garcia Dimaya is a lawful permanent resident, but was convicted for two burglaries. The crimes did not involve violence, but the Board of Immigration Appeals determined that they were “crimes of violence” and ordered his deportation.

That was during the Obama administration, and you’ll remember that the Obama administration was all about deporting “criminal” immigrants. Our nation’s desire to banish legal residents who commit crimes spans both parties.

While Dimaya’s appeal was working its way through the courts, the Court decided a case called Johnson v. United States where Antonin Scalia held that another law’s definition of “violent felony” was unconstitutionally vague and a violation of due process.

SCOTUSblog explains that there’s good precedent saying that immigrants should still be accorded due process when facing deportation:

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Vagueness challenges tend to be limited to criminal laws. However, in 1951, the Supreme Court in Jordan v. DeGeorge found that, because of “the grave nature of deportation,” due process requires fair notice of which criminal convictions will result in possible removal. The court went on in Jordan to reject a vagueness challenge to a provision of the immigration laws that authorized removal of an immigrant for “any crime of moral turpitude.”

Dimaya’s challenge comes at a crucial time: while the executive traditionally has broad authority on immigration concerns, having some minimal legal protections for legal residents would seem like a critical check against this executive branch. It is frightening to imagine what President Trump and Attorney General Jeff Sessions might do to legal permanent residents if they are not even constrained by due process concerns.

The Court couldn’t come to any kind of consensus when this case was argued in the aftermath of Scalia’s death, which is why the case is being re-argued today. But since Republicans successfully stole an entire Supreme Court vote, this issue sets up as a case study in the difference between Antonin Scalia and Neil Gorsuch.

Scalia was willing to check the executive in the face of due process concerns. Gorsuch? We’ll find out if Trump nominated a justice with the guts to stand up to him.

Argument preview: Criminal removal – Is “crime of violence” void for vagueness? [SCOTUSblog]

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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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