SUPREME COURT OF THE UNITED STATES
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 unconstitutionally vague either. See id.,
at ___ (Thomas, J., concurring 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 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 because 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. Accordingly, I respectfully dissent.
I continue to harbor doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause—and those doubts are only amplified 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 unconstitutionally 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 comfortably within the scope of §16(b).
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 procedures, 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.
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 constitutional and statutory provision[s] before depriving someone of life, liberty, or property.” Nelson
, 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 & Improvement Co.
, 18 How. 272 (1856). See id.,
at 276 (holding 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 support for the law-of-the-land view is not insubstantial.[1
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
, at ___ (opinion of Thomas, J.) (slip op., at
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 modern 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
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 Criteria 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 construction of penal statutes” because it “expressly include[s] civil statutes within its scope,” reflecting a “regrettable disregard” 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
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 substantive 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
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
, at ___ (opinion of Thomas, J.) (slip op., at 7) (discussing Chicago
527 U. S. 41 (1999)
This Court also has a bad habit of invoking the Due Process Clause to constitutionalize rules that were traditionally left to the democratic process. See, e.g., Williams
, 579 U. S. ___ (2016); BMW of North America, Inc.
517 U. S. 559 (1996)
504 U. S. 71 (1992)
; cf. Montgomery
, 577 U. S. ___ (2016). If vagueness is another example of this practice, then that is all the more reason to doubt its legitimacy.
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 Parliament.’ ” Demore
538 U. S. 510, 538 (2003)
(O’Connor, J., concurring in part and concurring in judgment) (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,
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 Jefferson) opposing the Act, while 10 States enacted counter-resolutions condemning the views of Virginia and Kentucky. 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 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 [Constitution]” and that “cases between the government and
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 nations”); Answer to the Resolutions of the State of Kentucky, 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.
, 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 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 (anonymously drafted by John Marshall), “[T]he right of remaining 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 Legislature 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 Pharmaceuticals 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 regulation 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 Marshall and the Federalists had cited in defense of the Alien Friends Act. Although the Court rejected the Federalists’ argument that resident aliens do not enjoy constitutional 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
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
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
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 standards in immigration laws that it likely would not have tolerated in criminal statutes. See, e.g., Boutilier
387 U. S. 118, 122 (1967)
(“ ‘psychopathic personality’ ”); Jordan
v. De George
341 U. S. 223, 232 (1951)
(“ ‘crime involving moral turpitude’ ”); cf. Mahler
, at 40 (“ ‘undesirable residents’ ”). Until today, this Court has never held that an immigration statute is unconstitutionally vague.
Thus, for more than a century after the founding, it was, 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 ancestors” protected by the
Fifth Amendment’s Due Process Clause. Murray’s Lessee
, 18 How., at 277.
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 Process as Separation of Powers, 121 Yale L. J. 1672, 1806 (2012) (“Vague statutes have the effect of delegating lawmaking 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 occasionally 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
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., concurring in judgment) (slip op., at 3) (“Congress improperly ‘delegates’ legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power”); accord, Whitman
v. American Trucking Assns., Inc.
531 U. S. 457, 487 (2001)
(Thomas, J., concurring). But I locate that principle 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., dissenting) (“[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 legislative 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 delegation question” in this case). I would not reach that question 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, immigration 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
, at ___ (opinion of Thomas, J.) (slip op., at 3). And there is some founding-era evidence that “the executive Power,” Art. II, §1, includes the power to deport aliens.
Blackstone—one of the political philosophers whose 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 English judges, sitting in the Judicial Committee of the Privy Council, ha[d] gone very far in supporting the . . . expulsion, by the executive authority of a colony, of aliens.” Demore
, 538 U. S., at 538 (opinion of O’Connor, J.) (quoting Fong Yue Ting
, 149 U. S., at 709). Some of the Federalists 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 Constitution, 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 national 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 mixture of external policy, and of the law of nations, that justifies this disposition”). More recently, this Court recognized that “[r]emoval decisions” implicate “our customary 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 political and economic circumstances.” Jama
v. Immigration 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 Appeals often review the BIA’s application of §16(b). I assume 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 interpretation 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 appropriate in individual cases, they did not wholesale invalidate them as unconstitutional delegations of legislative power. See Johnson
, 576 U. S., at ___–___, and n. 3 (opinion of Thomas, J.) (slip op., at 10–11, and n. 3).
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)).
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
553 U. S. 285, 304 (2008)
, 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 precedents. While Johnson
weakened the principle that a facial challenge requires a statute to be vague “in all
applications,” 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 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 respondent. 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
, 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
, 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 Commission had recognized that risk; see United States Sentencing 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)
v. United States
495 U. S. 575, 588 (1990)
. In Leocal
543 U. S. 1 (2004)
, this Court unanimously 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 created by the usual
burglary situation.” People
, 18 Cal. 4th 712
, 721, 958 P. 2d 1083, 1089 (1998) (emphasis added). “ ‘[T]he fact that a building is used as a home . . . increases such danger,’ ” which is why California elevates residential burglary to a first-degree offense. People
, 122 Cal. App. 4th 121, 133, 18 Cal. Rptr. 3d 550, 558 (2004); see also People
, 208 Cal. App. 3d 611, 615, 256 Cal. Rptr. 422
(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
, 770 F. 3d 1100, 1106 (CA4 2014); accord, United States
, 696 F. 3d 1095, 1102, 1104 (CA10 2012); United States
, 667 F. 3d 896, 900 (CA7 2012); United States
, 627 F. 3d 971, 976 (CA5 2010); United States
, 919 F. 2d 568, 573 (CA9 1990). First-degree residential 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
, 649 F. 3d 1175, 1178–1180 (CA9 2011); Avila
, at 1106–1107; Becker
, 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
, 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
, 803 F. 3d 1110, 1116, n. 7 (CA9 2015)); see Bureau of Justice Statistics, S. Catalano, National Crime 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 member of the household, see id.,
at 1, 12—is woefully underinclusive. It excludes other potential victims besides household members—for example, “a police officer, or a bystande[r] who comes to investigate,” James
, 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 substantial risk of physical force “against the person or property
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.,
breaking 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).
Finally, if facial vagueness challenges are ever appropriate, 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., at 370–371 (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 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.
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) unconstitutionally 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 second 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,
But if the categorical approach renders §16(b) unconstitutionally 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).
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 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.,
was interpreting one of ACCA’s enumerated 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 “involves 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
, at 208 (emphasis added). This “ordinary case” approach allowed courts to apply the residual clause without inquiring into the individual facts of the defendant’s prior crime.
gave a few reasons why the categorical approach was the correct reading of ACCA, see 495 U. S., at 600–601, but the “heart of the decision” was the Court’s concern 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 worried 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
, 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.
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 punishment,” including the fact of a prior conviction. Apprendi
v. New Jersey
530 U. S. 466, 501 (2000)
(Thomas, J., concurring). 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); Shepard
, at 27–28 (Thomas, J., concurring in part and 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
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 concerns 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).
The text of §16(b) does not require a categorical approach. The INA declares an alien deportable if he is
“convicted of an aggravated felony” after he is admitted to the United States.
8 U. S. C. §1227(a)(2)(A)(iii). Aggravated 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, attempted 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 physical force. On the other hand, the statute might refer to the underlying facts of the offense that the offender committed; 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
557 U. S. 29, 33
–34 (2009) (“[I]n ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’ and the like sometimes 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
Although both interpretations are linguistically possible, 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
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 substantial 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 “involves” 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.,
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 commit 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 approach. 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. 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
at ___ (slip op., at 12) (noting that “dozens” 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 recognized 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] indetermina[te],” “wholly ‘speculative,’ ” and mere “guesswork.” Ante,
at 7, 24 (quoting Johnson
at ___–___ (slip op., at 5, 7)); see also Chambers
, 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. See Johnson
, 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 difficult—to apply”).
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 sentencing judges conducting minitrials to determine a defendant’s past conduct. But even assuming the categorical approach solved this
Sixth Amendment problem in criminal 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 constitutional 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 constitutional issue to another.” Ante,
If constitutional avoidance applies here at all, it requires us to reject
the categorical approach for §16(b). According to the Court, the categorical approach is unconstitutionally 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-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.
, 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 approach. 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 argument persuasive either. “[T]he ‘sole purpose’ of the ‘aggravated 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 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
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 mischief. 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 aggravated 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] impracticab[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
, 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 ‘aggravated felony’ statute, unlike ACCA, contains some language 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) belongs in the underlying-conduct category. Because that is the better reading of §16(b)’s text—or at least a reasonable reading—the Court should have adopted it here.
I see no prudential reason for maintaining the categorical approach for §16(b). The Court notes that the Government “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 enacted 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 practice” 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 parties.” Neese
v. Southern R. Co.
350 U. S. 77, 78 (1955)
); 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 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 interpretation 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 unnecessarily 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 rabbit holes, I respectfully dissent.