President Donald Trump's only pick for the Supreme Court, Justice Neil Gorsuch, joined with the court's liberal justices in a 5-4 ruling for the first time Tuesday, providing the swing vote for an opinion that will make it more difficult to deport immigrants who have committed violent crimes.
In a decision likely to irritate the White House, Gorsuch agreed with his liberal colleagues that a clause in federal law allowing deportation of foreigners found guilty of "a crime of violence" is unconstitutional because it is overly vague.
The law does add a bit more definition to the standard, covering crimes that include actual violence, attempted violence or a threat of violence, but goes on to sweep in crimes that involve "a substantial risk that physical force against the person or property of another."
"What does that mean?" Gorsuch asked in a concurring opinion. "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 leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more," Gorsuch added.
Despite the potential political fallout from the ruling Tuesday, Gorsuch is positioning himself as an heir to the legacy of the conservative jurist he replaced: Justice Antonin Scalia.
Scalia wrote a similar opinion for the court in 2015, striking down a parallel provision that imposed 15-year minimum mandatory prison sentences on criminals who'd committed three "violent felonies."
The immigration case ruled on Tuesday, Sessions v. Dimaya, was first argued at the Supreme Court in January 2017, three days before Trump's inauguration. The court—shorthanded due to Scalia's death and Senate Republicans' refusal to consider President Barack Obama's nominee Merrick Garland—apparently deadlocked.
The case was reargued before the justices last October, once the court was back to full strength.
The new ruling does not strip the federal government entirely of its ability to deport immigrants convicted of crimes.
A list of specific crimes and categories of crimes that can lead to deportation remains on the books, as does the provision covering crimes involving actual or attempted violence or threats. But the so-called "residual clause" intended as a catch-all is dead—at least until Congress revises it.