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Dimayaa void-for-vagueness challenge to a criminal-removal provision of the U. As I explained in my preview of the case, the U. The case was first considered last term, when the court was short-handed following the death of Justice Antonin Scalia.
At oral argument last January, the justices seemed willing to test a provision of the immigration statute, a civil statute, even though vagueness challenges have more often been successful with respect to criminal laws.
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However, they appeared divided as to whether this case is distinguishable from Johnson and whether Section 16 b is void for vagueness, and they restored the case to their calendar for reargument this fall.
This oral argument seemed to have a more definitive direction than the first one. And the tide seemed to favor Dimaya. He first contended that the vagueness test as applied to an immigration law is not as rigorous as for criminal laws, a contention that Justice Ruth Bader Ginsburg quickly questioned.
Justice Sonia Sotomayor asked whether a vague statute might result in arbitrary enforcement, and noted that less than 10 percent of burglaries involve an occupied home, which might be expected to increase the potential for violence. Justice Elena Kagan expressed similar concerns. Should I bring in some experts and have an evidentiary hearing?
Gorsuch then pounced, saying that the doctrine was more procedural than substantive, because Congress could avoid a vagueness challenge by passing a more specific statute.
Seeing an ally in Gorsuch, Rosenkranz began as follows: When questioned by Alito about how to determine when a civil statute is unconstitutionally vague, Rosenkranz emphasized that the statute at issue is not just any civil statute, but a removal statute.
And, he maintained, the Supreme Court said in Jordan v. DeGeorge that vagueness standards apply to deportation statutes. Rosenkranz discussed the standard for vagueness in civil statutes set forth in Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc. Justice Anthony Kennedy asked whether Congress could pass a law allowing an immigrant convicted of a crime to be deported in the discretion of the U.
Rosenkranz said such a statute would be unconstitutionally vague. In response to a question from Gorsuch, Rosenkranz replied that vagueness analysis involves procedural, not substantive, due process, a proposition with which Alito disagreed.
Kevin Johnson, Argument analysis:The argument calendars are posted on the Court’s Website under the "Oral Arguments" link. In the recesses between argument sessions, the Justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argument session.
description of Supreme Court practice stands in contrast to the oral argument of John W. Davis in Youngstown Steel and Tube Co. v. Sawyer, U.S. (). In that case, Davis spoke for 87 minutes, interrupted by only a single question.
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By Jay O'Keeffe on May 15, Posted in Oral Argument On Wednesday, the Supreme Court of Virginia heard oral arguments on petitions for appeal, or “writ arguments.” Writ arguments give the appellant a chance to explain, in person, why the Court should grant his or her petition.
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