Defining violent crime can be trickier than it sounds. Mugging someone on a sidewalk or robbing a store with a firearm are obviously violent acts. But, what about stealing something from an unoccupied and unlocked home? Even the Supreme Court has difficulty making the call.

Until yesterday, federal immigration virtually guaranteed deportation for noncitizens convicted of a crime of violence. Four of the Supreme Court’s most left-leaning justices were joined by President Donald Trump’s appointee, Neil Gorsuch, in declaring the law too vague to be enforced. Some in the media quickly cast Gorsuch as a Trump turncoat.

Stephen Vladeck, a professor of law at the University of Texas at Austin, says there’s more going on here than politics of the obvious sort.   

Every state has its own criminal code and the term “crime of violence” is used by the federal government to cover the many different state offenses encompassing violent crime.

“The problem is that the definition of crime of violence is quite open-ended,” Vladeck says. “When it comes to criminal statute that has consequences like deportation it really isn’t sufficiently clear to the average person.”

A “crime of violence” includes any offense that includes substantial risk of physical harm. In 2015, Supreme Court Justice Antonin Scalia wrote a decision saying that the term “risk” runs into “vagueness problems” under the due process clause of the Fifth Amendment.

“I don’t think it’s a harbinger of some broad secret shift to the left by Justice Gorsuch.” Vladeck says. “I think this is the kind of formalistic textualism that was a core part of Justice Scalia’s jurisprudence.”

Justice Elena Kagan wrote the opinion for the court in yesterday’s decision. She pointed out many examples of crimes where the definition of violence wouldn’t be clear to the average person. Congress can come back and provide a more specific definition, but President Trump has tweeted that the decision will allow criminal aliens to stay in the country.

“We have to be careful not to overstate the importance of this decision,” Vladeck says. “Non-citizens who commit other non-aggravated felonies are still going to be removable despite yesterday’s decision.”

Vladeck says that Gorsuch is following in the footsteps of his predecessor, Scalia. Due process cases and cases that might give Congress too much interpretative leeway to administrative agencies are likely to push Gorsuch to side with the left side of the court.

“We have to remember, Justice Scalia, every now and then flashed his Libertarian streak,” he says. “I think it’s not surprising at all that Justice Gorsuch is following in the footsteps of his predecessor.”

Written by Jeremy Steen.

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