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April 17, 2018

Gorsuch Votes With Liberals on Deportation Case

It's a pretty defensible vote.

The law says you can be deported for any "aggravated felony." One category of "aggravated felony" is "a crime of violence."

The man the government sought to deport was convicted for burglary, twice.

Is burglary a "crime of violence"?

There is some argument one could make, if one wanted, that burglary is a "crime of violence." Historically, it was defined as breaking into a home at night, and treated more severely than other breaking and entry crimes, such as robbing a business or warehouse. That's because when you're breaking into a home at night, the odds that there will be law-abiding people present is high, and therefore the chance of violent conflict similarly high.

But I don't think most burglary statutes now require the dwelling in question to be a "home," and I don't think the "night" part is required often, either.

Either way, while someone could make this argument, is this a case where the law, on its face, apprises the reasonably-informed citizen of what the law is and what the punishments for breaking them shall be, as is generally required of laws?

(Or, at least: Which, in an earlier, better day, is what the law was supposed to do, before laws became so numerous and so vague that most citizens simply assume that if they're not doing something the state specifically demands, they're probably breaking some law or some claimed interpretation of some law?)

Gorsuch voted in favor of the notion that the law should be reasonably clear and specific enough to alert the reasonably-intelligent average citizen what the law is and what the consequences of breaking it are. The average citizen would probably not calculate that "burglary," especially as currently defined, could be claimed by an imaginative prosecutor to arguably be a "crime of violence," or, more accurately, "a crime of an elevated risk of a possibility of violence."

Though that applies to citizens, generally such principles apply to non-citizens too.

AllahPundit points out that the decision relies heavily on a previous ruling striking down a similarly-vague criminal statute (this one, regarding deportation, is civil in nature), a decision written by Antonin Scalia.

I guess people can argue about this either way, but I don't think anyone should take this as a sign that Gorsuch is secretly one of them. Antonin Scalia would often write surprisingly (surprisingly, for the unschooled) decisions favoring criminals, because he was a stickler about laws saying what they mean and meaning what they say, without lots of room for imagineering by ambitious prosecutors. (He was also pretty adamant on the Constitution similarly meaning what it said, you may have heard.)

In a famous ruling, he declared that the system of having alleged child sex abuse victims testify outside the courtroom with the testimony conveyed into the courtroom by closed circuit tv -- this done to spare the victim of having to confront his violator in open court -- to be unconstitutional, because the Constitution does explicitly guarantee the accused to have the right to "confront his accusers."

I'm sure Scalia wasn't happy that likely/alleged underage sex victims had to bear the angry stare of their rapists, and probably had sympathy for efforts to insulate them from that, but he couldn't just hand-wave away the Constitution's explicit guarantee here.

(Scalia tossed out all this strict interpretation of the Constitution, even when it favored criminals, when it came to drugs and drug searches, however.)

At any rate, if Congress wants to make burglary and other dangerous-yet-not-violent-per-se crimes deportable, it has the power to do so; but I can't say that Gorsuch cast an "unconservative" vote by, essentially, demanding that the State be specific about what the law is and not rely upon prosecutors' whims to decide what the law will be as regards this or that defendant.

Meanwhile, old effeminate manbabies who like to pretend to be sober, responsible analysts when they're not pretending to be giggling 12 year olds on Twitter gonna do what they do:

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posted by Ace of Spades at 02:27 PM

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