Criminal cases. Immigration removal is not a punishment for past conduct. It operates prospectively on the basis of the application of standards adopted by congress under which an alien is regarded as no longer conducive to the safety and welfare. Justice ginsburg but mr. Kneedler, if youre if youre making the distinction that johnson was a criminal case and this is a civil case, this court has had a number of decisions saying that line is not so rigid. For example, mlb, taking away parental rights, is a civil proceeding. And yet the court said, as in a criminal proceeding, for an indigent party, the state must give the transcript free. And so, if you had followed a rigid criminal civil, then if its civil, no free transcript. Only if its criminal. But the court said the the line is blurred when there is such a grave consequence. It was a grave consequence to be denied parental rights. Its a grave consequence to be removed from the United States. Mr. Kneedler and so our submission is not just the distinction between civil and criminal, although we think this courts cases establish that there is a difference. But the important points here, though, are immigration is distinctive. Immigration, this court has repeatedly said, even though it may be regarded as a harsh result or can have a serious impact on a persons life, it is not punishment for a past offense. It operates prospectively because congress has determined that the individuals presence in the United States is no longer conducive to the safety or welfare of the country. Justice sotomayor mr. Kneedler, does that permit arbitrary removal . Can the immigration officials walk down the street and say i just dont like the way you look; out . Mr. Kneedler no. And and this brings me to Justice Sotomayor but but let me get to that. So whether the distinction is criminal or civil, the issue for us, as i understand it under johnson, is, is it arbitrary . Is it so arbitrary that under any standard, criminal or civil, this is vague . Now, i know youre saying its not arbitrary for a bunch of different reasons. But please explain to me on the two grounds that johnson used, ordinary case and type of risk, how this is not equally arbitrary. Mr. Kneedler there are a number of a number of reasons why we why we think thats true. First of all, the court said in johnson it was the sum of the various attributes of the acca residual clause that created the problem. So whatever whatever might be the problem with with one of those, it was the combination of those. And those Justice Sotomayor well, i thought it was only two. The other things it mentioned were mr. Kneedler no, but, they they were they were critical attributes of the two. Thats the thats the important point. Justice kagan i mean i mean, what the court said is im quoting two features of the residual clause conspire to make it unconstitutionally vague. And then theres, you know, a clear holding sentence just a little bit later on in the opinion where it basically tells you exactly what two aspects its talking about. It says, 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 produces more unpredictability and arbitrariness than the due process clause authorized so, you know, it says, number 1, ordinary Case Analysis. Number 2, combined with a fairly fuzzy standard as to the threshold level of risk. And those were the two factors. And i guess the question is, are those two factors any different here . Mr. Kneedler yes, theyre theyre very different here. And as this courts decision in leocal demonstrates, it relied on the on the features that we believe are critically distinguished 16 b from the acca residual clause. Justice kagan here its the fact that theres ordinary Case Analysis, both statutes, right . Mr. Kneedler no, but they but they operate in very different in very different ways. Ordinary cases is a way of saying that the elements dont have to match up like under 16 a . It doesnt have to be the actual use of force. 16 b addresses those situations in which the elements of the offense involve a substantial risk that physical force would be used even though its not actually an element. So whereas under the acca residual clause, the ordinary Case Analysis was not was not tied to the text of the of the relevant provision as it is here. There are three provisions in the in the ordinary Case Analysis that are here that werent present there. You look to the nature of the offense, the offense by its nature. And this court said in leocal that means you look at the elements and the nature of the offense, involve a serious or substantial risk that physical force will be used, not that injury might result down the road but physical force, which this court said is a focused inquiry and specifically distinguished the possibility that harm might result. And in footnote 7 of the courts opinion, it specifically distinguished sentencing guideline that uses the very language of the acca residual clause and said this is not openended like that. And then the 16 b says the substantial risk has to arise in the course of the commission of the offense, which means its tied both temporally to the to the actual conduct of the offense and functionally, does the substantial risk inhere in the elements of the offense. Justice sotomayor so how do those two things change the definition of what an ordinary case is in burglary . The only time that i understand that burglars actually go into an occupied home is very little. Its probably less than 10 percent in which they confront someone, probably smaller amount when they actually use force against that person. Lots of burglaries are done with open doors or with jimmying without injuring a lock. How does any of those two things youve mentioned how do they change what constitutes an ordinary case for burglary and what the substantial risk of use of physical force or injury is . Mr. Kneedler well, again, i think starting with the text of 16 b , you look at the nature of the offense, the elements of the offense. Do they is inherent in those elements a risk, a substantial risk that force will be used . And and so looking at burglary, what is the nature of the offense with respect to the risk of harm or the, excuse me, the risk of the use of force . Well, this court said in leocal that the the nature of the offense there is that the burglar will encounter someone. If its risk of force against a person, that the that the offender will encounter someone while committing the offense Justice SotomayorJustice Scalia did exactly that in johnson and said the ordinary case and the risk of force or injury is something that youre leaving to the judges intuition. Mr. Kneedler no, i mean, with respect, Justice Scalias opinion in in johnson or or in james, or whatever case you may be speaking of, was not about 16 b , and and a unanimous decision of this court written by chief Justice Rehnquist identified burglary as the classic example of what is covered by 16 Justice Sotomayor well, it wasnt part of the residual clause anyway. Justice gorsuch mr. Kneedler, may i may i ask you just a couple quick questions . Hope to be quick. Mr. Kneedler sure. Justice gorsuch i hope theyre quick. First, getting back to the standard of review and the distinction between criminal and civil, this court seems to have drawn that line based on the severity of the consequences that follow to the individual, but that seems to me a tough line here to draw because i can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a 100 fine, and he wouldnt trade places in the world for someone who is deported from this country pursuant to a civil order or perhaps the subject of a civil forfeiture requirement and loses his home. So how sound is that line that weve drawn in the past, especially when the civil criminal divide itself is now a sevenpart balancing test, not exclusive, so there may be more than seven factors as i understand it. And i look at the text of the constitution, always a good place to start, and the due process clause speaks of the loss of life, liberty, or property. It doesnt draw a civil criminal line, and yet, elsewhere, even in the fifth amendment, i do see that line drawn, the right to selfincrimination, for example. So help me out with that. Mr. Kneedler well, i the i think the analysis derives from the thinking about what the purpose of vagueness restrictions are, and as this court has said in the criminal context, there are two basic points. One is that an individual, a person of Common Intelligence should know, have notice of what the law requires Justice Gorsuch fair fair notice of the law. Mr. Kneedler right. Justice gorsuch and isnt it really important in the civil context, too, when we have so many civil laws today, and theyre often hidden away in places like the federal register and other fine reads like that . Mr. Kneedler well, and the second point i was going to mention is, is whether it gives rise to the potential for arbitrary enforcement. And whats different about immigration, for example, from the criminal law, for example, the notice Justice Gorsuch but youd agree the fair notice point pertains to both the civil and the criminal sides . Mr. Kneedler it does, but i think in in in different respects, and in some ways, the two points i just mentioned or the two points the court has emphasized are are related in some ways. But with respect to the notice point the immigration context, this court has held that the ex post facto clause, which is applicable in criminal proceedings, does not apply in immigration proceedings. And, therefore, a person may be removed from the United States on a ground that was not a ground for removal at the time he engaged in the particular conduct. So the the idea that the that the statute for that reason has to have a notice element does not work. And then there is the concern about arbitrary enforcement. This is not, by the way, the sort of statute that regulates loitering or being annoying on the streets or something which is at the height of where i think the courts concern has been about police and juries and judges being arbitrary in the application. The immigration laws have always been enforced through a broad delegation of authority to the executive branch, reflecting the fact that immigration and Immigration Enforcement are closely related to the National Security and Foreign Relations of the United States. Justice ginsburg mr. Kneedler, does the government have another string in its bow here . I know were arguing about 16 b and its resemblance to acca, but you can be removed if you commit a crime of moral turpitude, and wouldnt burglary fall under that . Mr. Kneedler well, it it would depend on the the rules for what is a crime involving moral turpitude are somewhat intricate, depending on the nature of the offense. Its not Justice Ginsburg well, hasnt it been determined whether burglary is a crime of moral turpitude . Mr. Kneedler but it again, it would depend on the nature of the offense. In this particular case, the immigration judge concluded that the conduct here involved a crime involving moral turpitude, but the ij did not apply the categorical approach. It applied a factspecific approach and concluded that the defendants conduct in this case amounted to a crime involving moral turpitude. Justice alito do you think the concept of a crime of moral turpitude is less vague than 16 b . Mr. Kneedler no, i i i think not, but but this this, i think, brings brings to mind whats important about Immigration Enforcement or, frankly, a lot of Civil EnforcementJustice Sotomayor but kneedler mr. Kneedler, the crime of moral turpitude is always applied to the facts of the case. So johnson pointed out that, when you have a statute that uses approximations like substantial or significant or severe, that what gives it life is its application to actual facts. The difference between these two approaches is that this one is asking judges to hypothesize the facts and has nothing to do with the reality of the crime. Mr. Kneedler well, no, with respect, a crime involving moral turpitude, the categorical approach is applied there. It is not it is not a factspecific determination. Justice kagan but it is a different kind of categorical approach, isnt it . Its asking what the elements of the offense are that everybody has to commit, as opposed to what the elements of the offense are that people commit in the ordinary case, whatever that might be. And that raises the question that Justice Scalia thought was so important in johnson and elsewhere, where he says that theres no way really for a court to do that, you know, this is the the line, should we look to a Statistical Analysis of the state report or a survey, expert evidence, google, gut instinct, that this is the problem with accas residual clause under johnson as it is here, is that we dont really have a source of law to look to to tell what an ordinary case is under either statute. Mr. Kneedler no, i i i really dont think thats correct. In johnson, again, the court was concerned about a statute that referred to the chance the chance that injury will occur which could be completely openended. Here, this is tied to the text of the statute, by its nature, does it give rise to the risk of force or Justice Kagan before you get into that question, before you get into does it do this in terms of force, or does it do that in terms of injury, before you do any of that, you have to have an understanding of what the ordinary case is. And the problem in johnson with accas residual clause, according to Justice Scalia and the court, was that there was no way to tell what that ordinary case was. Mr. Kneedler again, with respect, this court, in leocal, unanimously held that burglary is a classic example, and it gave the reason why, which i think is helpful for answering this question more generally. And the court said that that burglary, by its nature, in the course of commission committing the offense, gives rise to a risk that physical force would be used during the offense because the person will encounter someone else. So built in inherent in the nature of burglary is the risk that the burglar will encounter someone while the crime is being committed. Justice gorsuch well, mr. Kneedler, if i might interrupt, im sorry, but this raises a question for me about the nature of our task here. It seems to me that one function of of our voidforvagueness doctrine is not just to ensure fair notice, procedural due process i think youd agree with that. Mr. Kneedler yes, but the notice Justice Gorsuch yes. Yeah. Mr. Kneedler with the caveat about immigration, were right. Justice gorsuch of course not of course not in this case, right, but, generally, the doctrine serves that function. Mr. Kneedler yes. Justice gorsuch and it also serves a separation of powers function. When the law runs out and judges cannot say what the law is, they dont make it up. Right . And we stop. Thats why we dont have a federal common law of crime, for example, right . And i wonder here how i would go about determining what the ordinary case is, the ordinary course of burglary in california, does it include fraudulently selling securities in someones home, thats burglary in california, is that the ordinary case or not . I would probably want to have statistics and evidentiary hearings and hear experts on that question. And that sounds to me a lot like what a legislative committee might do. And if i cant distinguish my job from a legislative committees work, am i not verging on the separation of powers problem . Mr. Kneedler well, at the margins or or at the outer limits, there may be problems like that. But i think its important for the court to focus on the core of what this this, unlike the acca residual clause, has a core, what the court another point we havent discussed, what the court was concerned about Justice Gorsuch well, but could you answer my question . Mr. Kneedler yeah. I was i was getting there. Now i Justice Gorsuch great. Mr. Kneedler i apologize. But the the if we look at the i think the court can comfortably look and see whether the statute has a core of administrable offenses. If there are ones at the margin, for example, that would give rise to the concern youre raising Justice Gorsuch well, lets take burglary in california, what the ordinary oh, and what level of generality am i supposed to look at in terms of what the ordinary case is . Municipality, orange county, state, california, the country . Or do i make that legislative mr. Kneedler and only because only because california burglary does not require an unlawful entry Justice Gorsuch right. Mr. Kneedler or unlawful remaining, and therefore, it does not satisfy generic burglary, but but generic burglary, as this court again unanimously held in in in leocal, is a classic example. And if i could use a couple of others, just to show that the court is not at sea here, kidnapping is another one. Kidnapping may be accomplished its typically accomplished maybe by the use of force, but can also be accomplished by trick. But that that doesnt mean that its not covered by 16 b because the entire time that the victim is being confined, whether or not he or she knows it initially that shes being confined against her will, once she finds out that she is, the risk of harm will materialize. Its a continuing offense Justice Gorsuch but but, mr. Kneedler, im sorry, i just i just am stuck on my question. How am i supposed to determine what the ordinary case is . Should i bring in some experts and have an evidentiary hearing . And if so, why why isnt that a legislative function . Mr. Kneedler well, i there may be cases where the statute itself is not clear as to whether the elements give rise to the requisite risk. And and california burglary may be one of them. Justice gorsuch so you would have me bring in experts . Mr. Kneedler no. I Justice Gorsuch you wouldnt you wouldnt mr. Kneedler no, im not Justice Gorsuch look, im just trying to get an answer on that. Mr. Kneedler no, no, im not saying im not saying experts, but but but where there are statistics available, for example, as as there were in several of of this courts cases under the acca residual clause, that statistics were looked to to really reinforce common sense. Justice breyer but do you remember probably you do or maybe not, that several judges, i remember because one of them was me and some of the Lower Court Judges said, why doesnt the Sentencing Commission or why doesnt that part of the Justice Department that keeps track of statistics go out and find out what is the typical way in which, for the acca provision, you know, the other provision, theyre committed, and case after case went by, and nobody ever had the statistics. And i tended to think, well, they cant get them. Otherwise, they would. And so whats the story . I think its a similar question to what is being asked. Mr. Kneedler well, there there may be general categories of offenses where that where that could Justice Breyer well, there were a lot in other words, we never had a case, that i can remember, under that other provision, where somebody came up with statistics, despite what id call pleading by a lot of mr. Kneedler well, there were there were statistics in chambers Justice Breyer there were . Okay. Mr. Kneedler and then there were statistics Justice Breyer then there are some. Then there were some. Mr. Kneedler and there were some statistics and cites dealing with with vehicle flight from an from an officer but im not Justice Gorsuch law clerks are excellent at gathering statistics, but theyre probably not as good as a legislative committee. Mr. Kneedler yeah, no, but but but i think its important to recognize that what we have here is a legislative enactment in which congress chose to identify the crimes that are covered by categories, the type of offense. And there and there is only so much that one can expect from a legislature in identifying a category. And here, congress identified a category in 16 b that is very closely tied to 16 a . 16 a involves the situations where the element the element of the offense itself involves the use or threatened use of force. 16 b expands that slightly to say, okay, it may not be technically an element, but is the is the offense under 16 b so instinct or inherent inherently contained, a risk of the use of force, that it that it should fall should fall in congresss judgment in that same category . You look at other offenses, a number of lower courts have held that conspiracy to commit hobbs act robbery is a crime of violence. Robbery certainly is a crime of violence. Conspiracy itself contains the substantial risk of physical force being used because conspiracy is an agreement to commit the very crime that will that will result in physical force, conspiracy to commit Justice Sotomayor how about statutory rape . Mr. Kneedler statutory Justice Sotomayor to start with, they know the courts below mr. Kneedler statutory sex sex sex offenses are difficult in any context. Sexual abuse of a minor, as as the court knows from last years case, but there is a category of cases, and we cite some in in our brief where with a sufficient age difference between an adult and a minor, the use of physical force is inherent in the nature of the offense, that when when the adult even if the even if the adult is able to get the child to comply without actually using physical force, the threat or the potential for physical force is always present, if the child resists the the adult can use force. Justice sotomayor is that the ordinary case . I thought that most of the pornography cases that were seeing are children not being physically forced into sex but being tricked into it by caretakers or or talked into it, et cetera . Mr. Kneedler but but Justice Sotomayor one may have personal views about whether an adult can ever not be using improper mr. Kneedler but but but the point is, in that in that encounter, the potential for the use of force, the risk for the use of force is always the same the same risk. And and whether or not force is used in 50 percent of the cases or 25 percent of the cases Justice Sotomayor so it doesnt surprise you mr. Kneedler in that context is not the relevant Justice Sotomayor it doesnt surprise you that the courts below are split on this question, just the way they were under acca. Mr. Kneedler well, the as we point out in our brief, the distinctions in the lower courts on this question and on a number of them have to do with the particular elements of the state offense. What particularly when it comes to sex offenses, its difficult to to say statutory rape or sexual abuse of a minor because the elements of the state offense may vary, but if Justice Gorsuch mr. Kneedler, if i may take you in a slightly different direction, some have criticized voidforvagueness doctrine as a subspecies of substantive due process, and they are legitimate on that score. Others suggest that it really is an element a form of procedural due process and also a product of our separation of powers, as weve discussed, to keep judges out of making new law. Whats whats the governments position on that . Mr. Kneedler well, i dont know that weve addressed it in precisely those terms. Justice gorsuch thats why im asking you now. laughter. mr. Kneedler no, it it feels like more of a it seems like more of a substantive due process limitation, although it does it does Justice Gorsuch why . Because the doctrine doesnt prohibit the congress from legislating in any area. It just says you have to do it in a way that provides fair notice and that doesnt involve this body in law making. Mr. Kneedler well, in that sense, i mean, i suppose it has a procedural aspect, but i but i think that, when you think about notice, but i think substantively, it also it also requires that congress be Justice Gorsuch congress could do specify any crimes it wishes to include in this statute tomorrow. Mr. Kneedler yes. Justice gorsuch theres no substantive limitation. Mr. Kneedler yes, it it could, but congress chose to identify a category of crimes that it believed gave rise to a substantial risk, and we shouldnt expect the impossible from congress when it wants to identify crimes by category. Like Justice Gorsuch really . Even when its going to put people in prison and deprive them of liberty and result in deportation, we shouldnt expect congress to be able to specify those who are captured by its laws . Mr. Kneedler we we think this law reasonably captures the category that congress thought whose conduct gave rise to a serious risk of of physical force being used. If i could refer Justice Ginsburg mr. Kneedler, did i get, correctly, your answer to the question about a crime of moral turpitude being an alternative that the government could have pursued . You say the immigration judge found that this was a crime. Mr. Kneedler but on grounds we think were not correct because the immigration judge did not apply the categorical approach, which has since been determined to be the right way to look at crime involving moral turpitude. Chief Justice Roberts thank you, mr. Kneedler. Mr. Rosenkranz . Mr. Rosenkranz thank you, mr. Chief justice, and may it please the court let me begin begin with Justice Gorsuchs central point. Justice gorsuch is right. This is not a job that congress can appropriately delegate to the courts and to enforcement officials on the ground. Congress has written a statute that makes it impossible for ordinary citizens or for Law Enforcement or for immigration officials to figure out what the law is, and congress has delegated that function to them. It has done it with two features that this court described as dooming the acca residual clause. First, the piece that most concerned the court, the court said was most important, hypothesizing this ordinary case of a crime and, second, then estimating the risk associated with that hypothesized version and whether that meets some vague standard. The government warned the court in johnson that section 16 b was equally susceptible to challenge. The government was right then, and the differences in statutory language that the government has since discovered do not change the outcome. Justice kennedy well, since discovered, but the statute here says during the course of committing the offense. And thats quite different from the statute in johnson. Mr. Rosenkranz your honor, it isnt quite different from the statute in johnson. The statute in johnson has the same limitation in different language. Section 16 b covers risks in the course of committing the crime, accas residual clause covered a crime that otherwise involves conduct. Both are referring back to the crime. But it really i i id like to address more concretely this in the course of committing the crime point because i cant tell you why the government is wrong without knowing what the government thinks those words mean. And the government keeps shifting back and forth between two versions of what in the course of committing the crime means. At points, the government says that it means in order to satisfy the elements of the crime. So it reads the sentence to mean you look for substantial risk that physical force may be used in order to satisfy the elements, but thats not how any court was ever applying this provision. Its not how the government was telling the courts to apply this provision. The Government Back then and even now, mr. Kneedler points to conspiracy and other inchoate offenses, those offenses are completed. The elements are completed when you say, i want you to kill my wife, here is 100 bucks, they are completed with the utterance of those words. Nevertheless, you look after the utterance, at least the government urged the courts. But what about attempted burglary in james . As johnson itself points out, or burglary johnson itself points out burglary was a problem. Why . Precisely because, under the ordinary case approach, courts were required to look past the elements. Burglary is committed, the elements are completed the moment you cross the threshold. Thats if thats the governments reading, then burglary would be out. What the court said in johnson is that its what happens after you cross the threshold that creates the risk. But thats so so then the government shifts to, okay, but no, no, its while the crime is under way, thats what in the course of committing the crime means, but thats not a solution. That is exactly the problem that johnson describes. Its concern was that the ordinary Case Analysis was detached from the statutory elements. And that that it leads courts to speculate about what happens after the statutory elements have all been satisfied, but while the crime is under way. Thats just as imaginary. Now lets lets look at Justice Alito suppose, mr. Rosenkranz, suppose a state enacted a statute that says that no person may be licensed to teach preschool, if the person has satisfied the language, not by reference to 16 b , but the language thats included in in 16 b . Would that be unconstitutionally vague . Mr. Rosenkranz no, i i dont think it would be. If its some state that is not incorporating by reference congresss handiwork or saying, were adopting this language because this is language congress adopted, it wouldnt be, but and i see were shifting now to the other piece of the case, which is whether which is the application of criminal standards for civil Justice Alito well, before i decide before i can determine whether this is unconstitutionally vague, i have to know what the standard is, so thats my question. If we apply the standard that that generally applies to civil statutes, would this be unconstitutionally vague . Mr. Rosenkranz the standard that applies Justice Alito i mean, we might do we might do a wonderful job of pruning the United States code if we said that every civil statute that is not written with the specificity that is required by criminal statute is unconstitutionally vague, we could boil that down a lot, but thats what im asking. Is that what youre arguing . Mr. Rosenkranz no, not at all, your honor. First, youre talking about a civil statute here that is very different from deportation. Its a licensing Justice Alito yeah. Im taking it stepbystep. Mr. Rosenkranz it right. Its a licensing statute. So there are three things to say about how this criminal standard applies in the civil context. The first is to the premise of your honors question, jordan settles the question the answer to the question how you apply criminal to the deportation context, but this court never has to decide whether to reaffirm jordan Justice Gorsuch lets lets say we dont think jordan decided that issue. Mr. Rosenkranz yes. So so two things to say before you even address jordan, and then the third thing to say is that jordan was right. So the first two things, apropos of Justice Alitos embedded assumption, section 16 b is a criminal statute that congress elected to import wholesale into this statute. This court has held that, if congress does that, it must then courts must apply the same criminal vagueness standards to the statute Justice Alito that seems like Justice Kennedy well, thats just a minor point that gets off the basic point of Justice Alito, but it did not incorporate exactly this statute. The language is different. But well leave that. Mr. Rosenkranz your honor, no, no, i Justice Kennedy a question is pending. Mr. Rosenkranz im sorry, Justice Kennedy. Congress literally said, in the ina, that the crime of the that the definition of crime of violence is the definition of section 16 b , section 16 b being a criminal statute. It then added all sorts of bells and whistles of other ways to create an aggravated felony, but this court, in a. B. Small, said, here is what you do when you have a statute that has both criminal and civil applications Justice Kennedy well, i i took us i took us away from Justice Alitos inquiry. He he wants to know the standard for determining vagueness in civil cases. Mr. Rosenkranz so the standard for determining vagueness in civil cases was laid out by this court in Hoffman Estates, and the answer is it depends on how serious the crime is. The the seriousness of the crime excuse me, how serious the penalty is or how serious the consequence is. And Justice Gorsuch exactly. And thats where i get stuck, right, because the consequences in many civil matters can be very grave, more so even than a lot of criminal penalties. Civil forfeiture, take a mans home, his entire livelihood, deport him. And i can think of lots of other examples that can be graver than any misdemeanor offense on the books today. And again, the line between civil and criminal depends upon a sevenpart nonexclusive factor balancing test. So what am i supposed to do with that . Mr. Rosenkranz well, your honor, i will answer the question, but let me preface it. Justice gorsuch great. laughter . Mr. Rosenkranz let me just preface it by saying ive only mentioned one of the reasons that this court doesnt have to figure out the answer to that question. And let me just Justice Gorsuch all right. But lets answer the question first and then you can go on. Mr. Rosenkranz okay. So i would go back to your point, Justice Gorsuch, that this court has repeatedly rejected a sharp line between civil and criminal. The correct distinction is the one that this court identified in Hoffman Estates, cases, whether civil or criminal, with severe consequences Justice Gorsuch how do i determine that . Mr. Rosenkranz yes. So here is how you determine it. One thing and by the way, this court has never had to answer that question since Hoffman Estates set this out, so its not a question that arises very often. The way the court answers the question here is is we know that criminal cases and First Amendment cases are on one side of the line. What else comes on that side of the line . If ever there was a consequence that was on a par with criminal cases, it is banishment, exile, lifetime banishment, the framers understood banishment to be equivalent to taking away that which makes life worth living, madison talked about banishment as the quintessential penalty, he says its difficult to imagine a doom to which the name cannot be applied. By the way, this is not new to this court. Its not just Justice Ginsburgs example. In a case involving a criminal protection, that is a constitutional protection that that relates only to crimes, that is padilla and the the sixth amendment, deportation already stands alone as the only civil consequence that triggers a constitutional protection on a par with the criminal protection. So you dont get to come into court and say my lawyer didnt get didnt tell me that i could forfeit my home. Justice sotomayor i get that you dont want to answer the question. laughter. Justice Sotomayor but im really im very interested in the answer, which is Justice Gorsuch is is asking how you where do you draw the line . So acceptable civil vagueness and nonacceptable civil vagueness . Mr. Rosenkranz well, your honor Justice Sotomayor or vagueness generally. Mr. Rosenkranz Hoffman Estates says that it varies. So what were talking about is the line between the severest penalties and those penalties that are less severe. The answer is, if it is on a par with a criminal punishment such that someone would trade one for the other, this court answered that question in lee. In lee, this court said, as Justice Gorsuch said earlier today, most people would happily take a little bit extra time in prison in order to avoid the consequence of deportation. Justice alito well, my earlier question was about licensing. So suppose this language applies to license as an attorney, license as a physician. Taking that away from a person is pretty severe. Mr. Rosenkranz yes, your honor, but but not as severe as lifetime banishment from this country, which is preceded by automatic and mandatory imprisonment. Justice alito and when we start arent we going to get into this same kind of legislating and how how severe . Where is this line drawn . Mr. Rosenkranz well, your honor, this is the line this court drew in Hoffman Estates. I mean, that was decades ago. Justice gorsuch what do you think about this line . Life, liberty, or property. Mr. Rosenkranz thats a great line. Justice gorsuch its right out of the text of the due process clause itself. Mr. Rosenkranz yes, thats a great line life, liberty, or property. And and particularly here we are talking about a liberty interest, a liberty interest that says you must leave, for some people, the only home that youve ever that youve ever had. You must leave your family. So that when someone is making the decision, am i going to plead guilty to a crime that ive never that i didnt commit in return for time served, he needs to know by the way, in return for crime served so he can get back to his wife and kids he needs to know whether ice is going to be standing out there depriving him of that liberty and deporting him from his wife and kids. Justice breyer you think you could go back to Justice Kennedys original question . If you dont recall it mr. Rosenkranz i do. Justice breyer what sticks in my mind, if i get it right, is lets look at the old acca the one we struck down in johnson, and the difficult language was it involves conduct that presents a serious potential risk of physical injury to another. And then there were a lot of examples where, gee, its awfully tough to figure out whether it does or does not fall within those words. Now lets look at this language. It involves a substantial risk that physical force against the person or property to another may be used in the course of committing the offense. Now, that would seem to be that if the offense is conspiracy to commit burglary, the conspiracy is finished, over, done with, long before they get to the property. And so that wouldnt be too tough. But burglary, which takes place on the property, or conspiracy under the first statute which would lead to the burglary that takes place, well, that becomes tougher. Okay. Now lets look at our statute now. And give me some examples. Im sure there are many. But i think it would be helpful where under this language, it seems, my god, what is the basic case . This is impossible. Mr. Rosenkranz ill give you several. Justice breyer okay. Mr. Rosenkranz first, sykes, vehicular flight. Okay. How do we the court was was mired in controversy about how you figure out whether vehicular flight is going to give rise to the right sort of risk and how do you how did the court do it . It was looking at the moments or the long time frame after the elements were satisfied. The moment you pull out, you are in vehicular flight. So in the course of certainly doesnt help. And the distinction between physical force and physical injury doesnt help. And the distinction between property and personal injury doesnt help. Youre still always imagining what is happening after you pull out . Okay, next one, residential trespass. It all depends upon, first, what do you imagine the ordinary case to be of residential trespass and then figure out how it plays out. Or car burglary, same exact problem. Or to take one example directly out of acca, extortion. It all depends upon the ordinary Case Analysis, which which goes back to Justice Sotomayors question early on. The heart of this problem is this ordinary case approach, and none of the the statutory differences that the government has pointed to help you figure out what the ordinary case is. Justice kagan and, mr. Rosenkranz, just to tie in this ordinary case problem with this phrase about during the commission of the crime, has the government in all of this briefing and in all of this argument ever come up with a single crime in which the ordinary case of that crime, the injury would be occurring after the commission of the crime . If the commission of the crime is taken to mean not just elements but a more general view of what the crime is. Mr. Rosenkranz in this case, no. Justice kagan im just suggesting that the government has never come up with a single case under acca in which and, remember, acca requires you to look at the ordinary case. In the ordinary case, what crime has injury that occurs after the commission of the crime . The government has not told us of any. Mr. Rosenkranz if you are that is correct, after the crime is over. I mean chief Justice Roberts poison . Mr. Rosenkranz conspiracy or solicitation to murder, the crime is done it occurs after. I think the governments current position, contrary to what it persuaded multiple courts of appeals of, was that thats out. And so thats the example, but in order to get there, the government has to take the quintessential crime of violence and say that it is not Justice Kagan and thats inconsistent with everything that the government has said in multiple cases; isnt that correct . Mr. Rosenkranz yes, in in i mean, the courts of appeals that have said that those crimes are within the residual Justice Breyer theyre saying right now, what about conspiracy . I mean, you can have conspiracy to commit burglary. Its over, once you conspire. Mr. Rosenkranz right. Well, thats a so thats an example, but i think the government said that thats in. Justice kagan that thats in. Mr. Rosenkranz right. And so if, thats in, then this whole notion of in the course of committing the crime doesnt do any work. Justice kennedy could could the government Justice Kagan similarly, the government please. Justice kennedy its a different point. Could could the government pass a statute saying that aliens who commit criminal offenses are deportable if in the discretion of the attorney general, the presence of the alien is inconsistent with the best interests of the people of the United States . Mr. Rosenkranz that is the basis of deportation . No. Justice kennedy why . Mr. Rosenkranz im sorry, let me let me back up. If Justice Kennedy in other words, what standards must a statute meet before an Administrative Officer can make the determination that the remaining in the United States is not in the best interests of the United States . Mr. Rosenkranz well Justice Kennedy would that would that suffice . Would that be unconstitutional . Mr. Rosenkranz that would be unconstitutional Justice Kennedy under what rule and under what context . Mr. Rosenkranz under the criminal voidforvagueness rule. A reasonable person, whether it is the deportee or an official on the ground or an Administrative Law judge would have no idea what the content of that prescription is, as a basis for being within the universe of people who can who are identified as being deportable. Now, if its a basis for the attorney generals exercise of discretion that despite the fact that you are deportable as congress has defined it, i am not going to deport you, thats another story. And by the way, that was the mahler case. Justice gorsuch mr. Rosenkranz . Mr. Rosenkranz yes. Justice gorsuch what do you say to the critique that the voidforvagueness doctrine, as a racial issue matter, is just substantive due process and suspect on that basis and therefore should be narrowly construed . Mr. Rosenkranz your honor, its not its not substantive due process. Its a procedural due process concern and its a separation of powers concern. Its both of those. It is the procedural right on the part of the individual whos being accused or being deported to know what the law is in advance. And as Justice Thomas has explained very eloquently, it derives out of the rule of lenity. And its also, as your honor was pointing out, a very important separation of powers set of principles because the Law Enforcement officer on the ground who gets to tell a nonlpr, you are an aggravated felon and you are out, with no opportunity for bia review and very limited judicial opportunity for judicial review, that is a classic abdication of nonlpr, you are an aggravated felon and you are out, with no Congressional Authority to line level officers. Justice alito how is it how is it procedural . I dont understand how you can say its a procedural right. You said you said the statute is void for vagueness. That certainly is substantive. Mr. Rosenkranz your honor, you say the statute is void for vagueness because when it is being applied to an individual, that individual is given no notice that lifetime banishment is going to be the consequence of what he thought to be a safe harbor Justice Alito and what if he was given notice in some other way . Mr. Rosenkranz i think it depends in what way. But this court said in johnson i mean, johnson actually had notice. Johnson knew that the illegal that the sawedoff shotgun was illegal, but this court struck the statute. Justice alito so that makes my point. He had notice. He knew. So wheres the procedural violation . Mr. Rosenkranz well, for for the vast majority of people and the people who are affected by it, it is procedural. But, you know, your honor, i just realized, in this colloquy, i never did answer the other part of your honors question, Justice Alito, about the reasons why the vagueness standard applies here, the criminal vagueness standard. So the first i said, before you ever get to jordan, is that the that 16 b is itself a criminal statute. The second reason is, to the point that Justice Gorsuch was making about the relationship between between criminal law and immigration law, there is not an area of law where the two are as integrated, and 16 b , in particular, excuse me, the acca provision here, in particular, has very significant criminal consequences. The aggravated felon label, once you are an aggravated felon, now thats in the ina, certain immigration crimes are triggered. And so aggravated felon becomes a an element of a crime. And ill give you an example. If if this if this vagueness analysis works the way the government says it works, mr. Dimaya can be deported because he had sufficient notice or the statute was sufficiently clear, but an aggravated felon who reenters this country is prosecuted as an aggregated felon. So, if he reentered the country, he can then be not he then he can then not be prosecuted as an aggravated felon because the statute would be too vague. That makes no sense, which is exactly why this court adopted the rule that it adopted in a. B. Small and that four members of this court repeated in northwestern bell, which is, if Congress Makes that choice to give civil and criminal ramifications to the same statute, the very same statute, if the statute is void for vague in one context, its void for vague in the other. And, by the way, that other context in a. B. Small was a silly little contract case, not, you know, even, you know, the licensing of a nursery. Justice ginsburg mr. Rosenkranz, can i ask you a simple question . If if, as this court has held crime of moral turpitude isnt unconstitutionally vague, why should 16 b fail to meet the vagueness test . Mr. Rosenkranz your honor, the answer is crime involving moral turpitude does not sit in a vacuum by itself. It is a phrase that congress adopted that has, at this point, probably two centuries worth of law describing what is in and what is out. And, by the way, so what did the court do in jordan . What the court did in jordan was to say, you, jordan, you committed a fraud. One thing that has been clear, since as long as those words have been used, is that a fraud is a classic crime involving moral turpitude. Thats why he lost that case. And if he had been criminally prosecuted under a statute that made an element of the crime that it become that it be a crime involving moral turpitude, the same result would obtain. And and so Justice Alito i mean, maybe you have in your head a list of you could categorize any offense that i might mention and say thats a crime of moral turpitude, thats not a crime of moral turpitude. I couldnt do that. Mr. Rosenkranz well Justice Alito and i doubt that somebody whos facing possible removal consequences would be able to answer that question. Mr. Rosenkranz well, your honor Justice Alito okay. Shooting a bald eagle, is that is that a crime of moral turpitude . Some people would think so. Mr. Rosenkranz it is it is not. Justice alito it is not. How about mr. Rosenkranz and, by the way, nor is flag burning. And but let me but let me answer the question this way. You dont have to know, but you you have to be able to go to someplace like a lawyer who can tell you what the answer is. And where does a lawyer go . There are 14 pages of of kurzban, where every single possible crime is categorized as in or out based upon decades of of judicial and other interpretations. Thats how one knows. Justice kagan and and in a crime of moral turpitude, we dont have to consider what the ordinary case is, do we . Mr. Rosenkranz i think that is what the court no, not the ordinary case, that is for sure. Justice kagan we dont. Mr. Rosenkranz yes. That is correct. Justice kagan all we do is look to the elements that everybody has to meet. Mr. Rosenkranz correct, correct. So let me close with this. I i appreciate the instinct to try and see if this court can do better with section 16 b than it did with accas residual clause, but in deciding whether to take that route, this court has to decide whether anything is to be gained by this whole enterprise of sending the lower courts back to apply now a different standard and figure out how it applies to all of these crimes, that process is going to be no less arbitrary, no less speculative, and lifetime banishment should not hang on the unpredictable answer to the question, is this crime in or is it out . Congress can, of course, decide the circumstances under which lifetime residents can be kicked out of this country, but it disserves the separation of powers, that Justice Gorsuch referred to, to allow congress to pass the buck to immigration officials and courts with a provision this vague. If there are no further questions, we respectfully request that the court affirm the court of appeals. Thank you, your honor. Chief Justice Roberts thank you, counsel. Mr. Kneedler, three minutes. Mr. Kneedler yes, there are several points i would like to make. First of all, with respect to conspiracy and some of the other crimes that have been mentioned, this is a critical point to understand. Those crimes are continuing crimes. Conspiracy is conspiracy, you could be prosecuted for conspiracy from the moment of the agreement, but the conspiracy continues up until the commission of the crime. The commission of the crime is the culmination of the conspiracy. The same thing with burglary, burglary is not over when you enter the house. It its over when you leave the house. Kidnapping is not over until the victim is freed. Escape from a prison is a continuing offense. And 16 b and its counterpart in 924 c serve a Critical Role in circumstances like that, where a crime extends over a period of time, you can complete the crime without violence being an element, but theres it is instinct with risk of crime, and that is why or, excuse me, force, and that is why congress addressed it, and that is what this Court Unanimously focused upon in leocal. This 16 b has been on the books for 30 years and has not generated any anything like the sort of confusion that accas residual clause did. And this court, we submit, should pause greatly before extracting from the u. S. Code a statute that has so many applications. In the immigration context, this statute is applied all the time through the mediation of an administrative body. Its not like a regular civil law in that respect. Justice sotomayor in how many of those cases is it the sole basis of deportation . Mr. Kneedler well, it can be i dont know the percentage, but its also a basis for denial of discretionary relief. Also in deciding what what falls in this category, statistics are not the the major thing. There are plenty of things to look at, the body of judicial decisions construing the very provision, the background of the legal traditional, which is what this court drew on in in leocal, in saying that burglary is a classic example, its a classic example for the reasons that i just gave. You can look at the legislative judgments embodied in the crime, is the is the circumstance when force is not used, does it is it like the situations where the elements are are present . You asked for an example, i think, of a of a crime that would be in under acca and out here. Possession of a weapon is one because possession inherent in the possession is not the use. There has to be a subsequent act in the use of a weapon. So thats thats out here because its not in the course of committing the crime of possession. We said it was in, in acca, because it is injury might flow, and it was actually a pretty good illustration of the difference between the two circumstances. And, finally, with respect to immigration, i think its important for the court to understand that immigration provisions and grounds for deportation are often written in very broad and general terms and given content by the executive branch in which congress has has vested authority. Crimes involving moral turpitude Justice Gorsuch youre not asking the executive for the executive to define these crimes. Youre asking us to do it, right . Mr. Kneedler well, in the immigration context Justice Gorsuch this isnt an example where congress has delegated authority to the executive to do this. Are you asking are you suggesting its delegated to this branch to do it . Mr. Kneedler no, its not delegated to this branch. This branch has to construe the the statute that congress has enacted. In other circumstances, the agency, of course, gets deference in deciding what constitutes a a particular removable offense. Chief Justice Roberts thank you, counsel. The case is submitted. Landmark cases, a cspan history series. Join us as we hear the human stories and constitutional drama 12 frequently cited cases. Landmark cases. Live on cspan beginning in february. Representatives of the Prescription Drug manufacturing distribution and Retailing Industries testified this morning on the rising prices of drugs. Cspan. Org and our free cspan radio app. Bedridden veteran reporter spoke with the executive editors of the Washington Post and the New York Times about freedom of the press. This runs an hour and 15 minutes