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

Cite as: 584 U. S. ____ (2018) 3

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

Cite as: 584 U. S. ____ (2018) 7

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.,

Cite as: 584 U. S. ____ (2018) 9

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

the

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

Cite as: 584 U. S. ____ (2018) 19

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., at

29–30, 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

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