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Syllabus > Majority Opinion > Concurring Opinion > Dissenting Opinion >
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Petitioner v. JAMES GARCIA DIMAYA
January 17, 2017, Argued, Reargued October 2, 2017
April 17, 2018, Decided
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[*1207] The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an âaggravated felonyâ after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii) , 1229b(a)(3), (b)(1)(C). An aggravated felony includes âa crime of violence (as defined in [ 18 U. S. C. §16 ] . . . ) for which the term of imprisonment [is] at least one year.â §1101(a)(43)(F) . Section 16s definition of a crime of violence is divided into two clauses--often referred to as the elements clause, §16(a) , and the residual clause, §16(b) . The residual clause, the provision at issue here, defines a âcrime of violenceâ as âany other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.â To decide whether a person's conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether âthe particular factsâ underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1 , 7 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 , nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether âthe ordinary caseâ of an offense poses the requisite risk, James v. United States, 550 U. S. 192 , 208 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 .
Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a âcrime of vio-[**552] lenceâ under §16(b) . While Dimaya's appeal was pending in the Ninth Circuit, this Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)--defining âviolent felonyâ as any felony that âotherwise involves conduct that presents a serious potential risk of physical injury to another,â 18 U. S. C. §924(e)(2)(B) -was unconstitutionally âvoid for vaguenessâ under the Fifth Amendmentâs Due Process Clause. Johnson v. United States, 576 U. S. ___, ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 . Relying on Johnson, the Ninth Circuit held that §16(b) , as incorporated into the INA, was also unconstitutionally vague.
Held:
The judgment is affirmed.
803 F. 3d 1110 , affirmed.
Justice Kagan delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, concluding that §16s residual clause is unconstitutionally vague. Pp. ___ - ___, ___ - ___, 200 L. Ed. 2d , at 558-561, 564-569.
(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCAâs residual clause--an ordinary-case requirement and an ill-defined risk threshold--combined in the same constitutionally problematic way. To begin, ACCAâs residual clause created âgrave uncertainty about how to estimate the risk posed by a crimeâ because it âtie[d] the judicial assessment[*1208] of riskâ to a speculative hypothesis about the crime's âordinary case,â but provided [***2] no guidance on how to figure out what that ordinary case was. 576 U. S., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 . Compounding that uncertainty, ACCAâs residual clause layered an imprecise âserious potential riskâ standard on top of the requisite âordinary caseâ inquiry. The combination of âindeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,â id., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 579 , resulted in âmore unpredictability and arbitrariness than the Due Process Clause tolerates,â id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 579 . Section 16(b) suffers from those same two flaws. Like ACCAâs residual clause, §16(b) calls for a court to identify a crime's âordinary caseâ in order to measure the crime's risk but âoffers no reliable wayâ to discern what the ordinary version of any offense looks like. Id., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 579 . And its âsubstantial riskâ threshold is no more determinate than ACCAâs âserious potential riskâ standard. Thus, the same â[t]wo featuresâ that âconspire[d] to makeâ ACCAâs residual clause unconstitutionally vague also exist in §16(b) , with the same result. Id., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 . Pp. ___ - ___, 200 L. Ed. 2d , at 558-561.
(b) The Government identifies three textual discrepancies between ACCAâs residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate. Pp. ___ - ___, 200 L. Ed. 2d , at 564-569.
(1) First, the Government argues that §16(b) s express requirement (absent from ACCA) that the risk arise from acts taken âin the course of [**553] committing the offense,â serves as a âtemporal restrictionâ--in other words, a court applying §16(b) may not âconsider risks arising afterâ the offense's commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any offense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the temporal language, a court applying the ordinary case approach, whether in §16s or ACCAâs residual clause, would do the same thing--ask what usually happens when a crime is committed. The phrase âin the course ofâ makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.
Second, the Government says that the §16(b) inquiry, which focuses on the risk of âphysical force,â âtrains solelyâ on the conduct typically involved in a crime. Brief for Petitioner 36. In contrast, ACCAâs residual clause asked about the risk of âphysical injury,â requiring a second inquiry into a speculative âchain of causation that could possibly result in a victim's injury.â Ibid. However, this Court has made clear that âphysical forceâ means âforce capable of causing physical pain or injury.â Johnson v. United States, 559 U. S. 133 , 140 , 130 S. Ct. 1265 , 176 L. Ed. 2d 1 . So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Thus, the force/injury distinction does not clarify a court's analysis of whether a crime qualifies as violent.
Third, the Government notes that §16(b) avoids the vagueness of [***3] ACCAâs residual clause because it is not preceded by a âconfusing list of exemplar crimes.â Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCAâs residual clause meaning. But to say that they failed to resolve the clause's vagueness is hardly to[*1209] say they caused the problem. Pp. ___ - ___, 200 L. Ed. 2d , at 564-567.
(2) The Government also relies on judicial experience with §16(b) , arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. ___ - ___, 200 L. Ed. 2d , at 567-569.
Justice Kagan, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor, concluded in Parts II and IV-A:
(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed because the removal of an alien is a civil matter rather than a criminal case. This Court's precedent forecloses that argument. In Jordan v. De George, 341 U. S. 223 , 71 S. Ct. 703 , 95 L. Ed. 886 , the Court considered what vagueness standard applied in removal cases and concluded that, âin view of the grave nature of deportation,â the most exacting vagueness standard must apply. Id., at 231 . Nothing in the ensuing years [**554] calls that reasoning into question. This Court has reiterated that deportation is âa particularly severe penalty,â which may be of greater concern to a convicted alien than âany potential jail sentence.â Jae Lee v. United States , 582 U. S. ___, ___, 137 S. Ct. 1958 , 198 L. Ed. 2d 476 . Pp. ___ - ___, 200 L. Ed. 2d , at 557-558.
(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be abandoned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again âhas not asked [the Court] to abandon the categorical approach in residual-clause cases,â suggesting the fact-based approach is an untenable interpretation of §16(b) . 576 U. S., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 583 . Moreover, a fact-based approach would generate constitutional questions. In any event, §16 (b)s text demands a categorical approach. This Court's decisions have consistently understood language in the residual clauses of both ACCA and §16 to refer to âthe statute of conviction, not to the facts of each defendant's conduct.â Taylor v. United States, 495 U. S. 575 , 601 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 . And the words âby its natureâ in §16(b) even more clearly compel an inquiry into an offense's normal and characteristic quality--that is, what the offense ordinarily entails. Finally, given the daunting difficulties of accurately âreconstruct[ing],â often many years later, âthe conduct underlying [a] conviction,â the conduct-based approach's âutter impracticabilityâ--and associated inequities--is as great in §16(b) as in ACCA. Johnson, 576 U. S., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 583 . Pp. ___ - ___, 200 L. Ed. 2d , at 561-564.
Justice Gorsuch, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally [***4] vague for the reasons identified in Johnson v. United States, 576 U. S. ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 , concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government's argument that a less-than-fair-notice standard should apply where (as here) a person faces only civil, not criminal, consequences from a statute's[*1210] operation is unavailing. In the criminal context, the law generally must afford âordinary people . . . fair notice of the conduct it punishes,â id., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 577 , and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving either the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. ___ - ___, 200 L. Ed. 2d , at 569-581.
803 F. 3d 1110 , affirmed.
Edwin S. Kneedler argued and reargued the cause for petitioner.
E. Joshua Rosenkranz argued and reargued the cause for respondent.
Kagan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to [**555] Parts I, III, IV-B, and V, in which Ginsburg, Breyer, Sotomayor, and Gorsuch, JJ., joined, and an opinion with respect to Parts II and IV-A, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Gorsuch, J., filed an opinion concurring in part and concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Kennedy and Alito, JJ., joined as to Parts I-C-2, II-A-1, and II-B.
KAGAN
Justice Kagan announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, and an opinion with respect to Parts II and IV-A, in which Justice Ginsburg, Justice Breyer, and Justice Sotomayor join.
Three Terms ago, in Johnson v. United States, this Court held that part of a federal lawâs definition of âviolent felonyâ was impermissibly vague. See , 576 U. S. ___, ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 576 (2015). The question in this case is whether a similarly worded clause in a statuteâs definition of âcrime of violenceâ suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.
I
The Immigration and Nationality Act (INA) renders deportable any alien convicted of an âaggravated felonyâ after entering the United States. 8 U. S. C. §1227(a)(2)(A)(iii) . Such an alien is also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. See §§1229b(a)(3) , (b)(1)(C) . Accordingly, [*1211] removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here.
The INA defines âaggravated felonyâ by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes. §1101(a)(43) ; see Luna Torres v. Lynch[***5] , 578 U. S. ___, ___, 136 S. Ct. 1619 , 194 L. Ed. 2d 737 , 739 (2016). According to one item on that long list, an aggravated felony includes âa crime of violence (as defined in section 16 of title 18 . . . ) for which the term of imprisonment [is] at least one year.â §1101(a)(43) (F). The specified statute, 18 U. S. C. §16 , provides the federal criminal codeâs definition of âcrime of violence.â Its two parts, often known as the elements clause and the residual clause, cover:
â(a)an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
â(b)any other offense that is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be used in
the course of committing the offense.â
Section 16(b) , the residual clause, is the part of the statute at issue in this case.
To decide whether a personâs conviction âfalls within the ambitâ of that clause, courts use a distinctive form of what we have called the categorical approach. Leocal v. Ashcroft, 543 U. S. 1 , 7 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 (2004). [**556] The question, we have explained, is not whether âthe particular factsâ underlying a conviction posed the substantial risk that §16(b) demands. Ibid. Neither is the question whether the statutory elements of a crime require (or entail) the creation of such a risk in each case that the crime covers. 1 The §16(b) inquiry instead turns on the ânature of the offenseâ generally speaking. Ibid. (referring to §16(b) âs âby its natureâ language). More precisely, §16(b) requires a court to ask whether âthe ordinary caseâ of an offense poses the requisite risk. James v. United States, 550 U. S. 192 , 208 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 (2007); see infra, at 7.
In the case before us, Immigration Judges employed that analysis to conclude that respondent James Dimaya is deportable as an aggravated felon. A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first-degree burglary under California law. See Cal. Penal Code Ann. §§459 , 460(a) . Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a âcrime of violenceâ under §16(b) . â[B]y its nature,â the Board reasoned, the offense âcarries a substantial risk of the use of force.â App. to Pet. for Cert. 46a. Dimaya sought review in the Court of Appeals for the Ninth Circuit.
While his appeal was pending, this Court held unconstitutional part of the definition of âviolent felonyâ in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e) . ACCA prescribes a 15-year [*1212] mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for a âviolent felony.â §924(e)(1) . The definition of that statutory term goes as follows:
âany crime punishable by imprisonment for a term exceeding one year . . . thatâ
â(i)has as an element the use, attempted use, or threatened use of physical force against the person of another; or
â(ii)is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential [***6] risk of physical injury to another.â §924(e)(2)(B) (emphasis added).
The italicized portion of that definition (like the similar language of §16(b) ) came to be known as the statuteâs residual clause. In Johnson v. United States, the Court declared that clause âvoid for vaguenessâ under the Fifth Amendmentâs Due Process Clause. 576 U. S., at ___-___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 582 .
Relying on Johnson, the Ninth Circuit held that §16(b) , as incorporated [**557] into the INA, was also unconstitutionally vague, and accordingly ruled in Dimayaâs favor. See Dimaya v. Lynch, 803 F. 3d 1110 , 1120 (2015). Two other Circuits reached the same conclusion, but a third distinguished ACCAâs residual clause from §16âs. 2 We granted certiorari to resolve the conflict. Lynch v. Dimaya, 579 U. S. ___ , ___, 137 S. Ct. 31 , 195 L. Ed. 2d 902 (2016).
II
âThe prohibition of vagueness in criminal statutes,â our decision in Johnson explained, is an âessentialâ of due process, required by both âordinary notions of fair play and the settled rules of law.â 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 577 ) (quoting Connally v. General Constr. Co., 269 U. S. 385 , 391 , 46 S. Ct. 126 , 70 L. Ed. 322 (1926)). The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have âfair noticeâ of the conduct a statute proscribes. Papachristou v. Jacksonville, 405 U. S. 156 , 162 , 92 S. Ct. 839 , 31 L. Ed. 2d 110 (1972). And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges. See Kolender v. Lawson, 461 U. S. 352 , 357-358 , 103 S. Ct. 1855 , 75 L. Ed. 2d 903 (1983). In that sense, the doctrine is a corollary of the separation of powersârequiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not. Cf. id., at 358 , n. 7, 103 S. Ct. 1855 , 75 L. Ed. 2d 903 (â[I]f the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, [it would] substitute the judicial for the legislative departmentâ (internal quotation marks omitted)).
The Government argues that a less searching form of the void-for-vagueness doctrine applies here than in Johnson because this is not a criminal case. See Brief for Petitioner 13-15. As the Government notes, this Court has stated that â[t]he degree of vagueness that the Constitution [allows] depends in part on the nature of the enactmentâ: In particular, the Court has âexpressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.â [*1213] Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 498-499 , 102 S. Ct. 1186 , 71 L. Ed. 2d 362 (1982). The removal of an alien is a civil matter. See Arizona v. United States, 567 U. S. 387 , 396 , 132 S. Ct. 2492 , 183 L. Ed. 2d 351 (2012). Hence, the Government claims, the need for clarity is not so strong; even a law too vague to support a conviction or sentence may be good enough to sustain a deportation order. See Brief for Petitioner 25-26.
But this Courtâs precedent forecloses that argument, because we long ago held that the most exacting vagueness standard should apply in removal cases. In Jordan v. De George, we considered whether a provision of immigration law making an alien deportable if convicted of a âcrime involving moral turpitudeâ [**558] was âsufficiently definite.â 341 U. S. 223 , 229 , 71 S. Ct. 703 , 95 L. Ed. 886 (1951). That provision, [***7] we noted, âis not a criminal statuteâ (as §16(b) actually is). Id., at 231 , 71 S. Ct. 703 , 95 L. Ed. 886 ; supra, at 1-2. Still, we chose to test (and ultimately uphold) it âunder the established criteria of the âvoid for vaguenessâ doctrineâ applicable to criminal laws. 341 U. S., at 231 , 71 S. Ct. 703 , 95 L. Ed. 886 . That approach was demanded, we explained, âin view of the grave nature of deportation,â ibid. âa âdrastic measure,â often amounting to lifelong âbanishment or exile,â ibid. (quoting Fong Haw Tan v. Phelan, 333 U. S. 6 , 10 , 68 S. Ct. 374 , 92 L. Ed. 433 (1948)).
Nothing in the ensuing years calls that reasoning into question. To the contrary, this Court has reiterated that deportation is âa particularly severe penalty,â which may be of greater concern to a convicted alien than âany potential jail sentence.â Jae Lee v. United States, 582 U. S. ___, ___, 137 S. Ct. 1958 , 198 L. Ed. 2d 476 , 488 (2017)) (quoting Padilla v. Kentucky, 559 U. S. 356 , 365 , 368 , 130 S. Ct. 1473 , 176 L. Ed. 2d 284 (2010)). And we have observed that as federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more âintimately related to the criminal process.â Chaidez v. United States, 568 U. S. 342 , 352 , 133 S. Ct. 1103 , 185 L. Ed. 2d 149 (2013) (quoting Padilla, 559 U. S., at 365 , 130 S. Ct. 1473 , 176 L. Ed. 2d 284 ). What follows, as Jordan recognized, is the use of the same standard in the two settings.
For that reason, the Government cannot take refuge in a more permissive form of the void-for-vagueness doctrine than the one Johnson employed. To salvage §16âs residual clause, even for use in immigration hearings, the Government must instead persuade us that it is materially clearer than its now-invalidated ACCA counterpart. That is the issue we next address, as guided by Johnson âs analysis.
III
Johnson is a straightforward decision, with equally straightforward application here. Its principal section begins as follows: âTwo features of [ACCAâs] residual clause conspire to make it unconstitutionally vague.â 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 . The opinion then identifies each of those features and explains how their joinder produced âhopeless indeterminacy,â inconsistent with due process. Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 579 . And with that reasoning, Johnson effectively resolved the case now before us. For §16âs residual clause has the same two features as ACCAâs, combined in the same constitutionally problematic way. Consider those two, just as Johnson described them:
âIn the first place,â Johnson explained, ACCAâs residual clause created âgrave uncertainty about how to estimate the risk posed by a crimeâ because it âtie[d] the judicial assessment of riskâ to a hypothesis about the crimeâs âordinary case.â Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 ). Under the clause, a court focused on neither the âreal-world [*1214] factsâ nor the bare âstatutory elementsâ of an offense. Ibid. Instead, a court was supposed to âimagineâ an âidealized ordinary case of the crimeââor otherwise put, the court had to identify the âkind of conduct the âordinary caseâ of [**559] a crime involves.â Ibid. But how, Johnson asked, should a court figure that out? By using a âstatistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?â Ibid. (internal quotation marks omitted). ACCA provided no guidance, rendering judicial accounts of the âordinary caseâ wholly âspeculative.â Ibid. Johnson gave as its prime example the [***8] crime of attempted burglary. One judge, contemplating the âordinary case,â would imagine the âviolent encounterâ apt to ensue when a âwould-be burglar [was] spotted by a police officer [or] private security guard.â Id ., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 . Another judge would conclude that âany confrontationâ was more âlikely to consist of [an observerâs] yelling âWhoâs there?â . . . and the burglarâs running away.â Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 579 . But how could either judge really know? âThe residual clause,â Johnson summarized, âoffer[ed] no reliable wayâ to discern what the ordinary version of any offense looked like. Ibid. And without that, no one could tell how much risk the offense generally posed.
Compounding that first uncertainty, Johnson continued, was a second: ACCAâs residual clause left unclear what threshold level of risk made any given crime a âviolent felony.â See ibid. The Court emphasized that this feature alone would not have violated the void-for-vagueness doctrine: Many perfectly constitutional statutes use imprecise terms like âserious potential riskâ (as in ACCAâs residual clause) or âsubstantial riskâ (as in §16âs). The problem came from layering such a standard on top of the requisite âordinary caseâ inquiry. As the Court explained:
â[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as âsubstantial riskâ to real-world conduct; the law is full of instances where a manâs fate depends on his estimating rightly . . . some matter of degree[.] The residual clause, however, requires application of the âserious potential riskâ standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain[,] this abstract inquiry offers significantly less predictability than one that deals with the actual . . . facts.â Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 583 (some internal quotation marks, citations, and alterations omitted).
So much less predictability, in fact, that ACCAâs residual clause could not pass constitutional muster. As the Court again put the point, in the punch line of its decision: âBy 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 clauseâ violates the guarantee of due process. Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 579 . 3
[*1215] Section 16 âs residual clause violates [**560] that promise in just the same way. To begin where Johnson did, §16(b) also calls for a court to identify a crimeâs âordinary caseâ in order to measure the crimeâs risk. The Government explicitly acknowledges that point here. See Brief for Petitioner 11 (âSection 16(b), like [ACCAâs] residual clause, requires a court to assess the risk posed by the ordinary case of a particular offenseâ). And indeed, the Governmentâs briefing in Johnson warned us about that likeness, observing that §16(b) would be âequally susceptible to [an] objectionâ that focused on the problems of positing a crimeâs ordinary case. Supp. Brief for Respondent, O. T. 2014, No. 13-7120, pp. 22-23. Nothing in §16(b) helps courts to perform that task, just as nothing in ACCA did. We can as well repeat [***9] here what we asked in Johnson: How does one go about divining the conduct entailed in a crimeâs ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct? See Johnson, 576 U. S., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 ; supra, at 7; post, at 16-17 (Gorsuch, J., concurring in part and concurring in judgment). And we can as well reiterate Johnsonâs example: In the ordinary case of attempted burglary, is the would-be culprit spotted and confronted, or scared off by a yell? See post, at 16 (opinion of Gorsuch, J.) (offering other knotty examples). Once again, the questions have no good answers; the âordinary caseâ remains, as Johnson described it, an excessively âspeculative,â essentially inscrutable thing. 576 U. S., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 ; accord post, at 27 (Thomas, J., dissenting). 4
And §16(b) also possesses the second fatal feature of ACCAâs residual clause: uncertainty about the level of risk that makes a crime âviolent.â In ACCA, that threshold was âserious potential riskâ; in §16(b) , it is âsubstantial risk.â See supra, at 2, 4. But the Government does not argue that the latter formulation is any more determinate than the former, and for good reason. As THE CHIEF JUSTICEâs valiant attempt to do so shows, that would be slicing the baloney mighty thin. See post, at 5-6 (dissenting opinion). And indeed, Johnson as much as equated the two phrases: Return to the block quote above, and note how Johnsonâas though anticipating this caseârefers to them interchangeably, [**561] as alike examples of imprecise âqualitative standard[s].â See supra, at 8; 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 583 . Once again, the point is not that such a non-numeric standard is alone problematic: In Johnsonâs words, âwe do not doubtâ the constitutionality of applying §16(b) âs âsubstantial risk [standard] to real-world conduct.â Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 583 (internal quotation marks omitted). The difficulty comes, in §16 âs residual clause [*1216] just as in ACCAâs, from applying such a standard to âa judge-imagined abstractionââi.e., âan idealized ordinary case of the crime.â Id ., at ___, ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 , 583 . It is then that the standard ceases to work in a way consistent with due process.
In sum, §16(b) has the same â[t]wo featuresâ that âconspire[d] to make [ACCAâs residual clause] unconstitutionally vague.â Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 . It too ârequires a court to picture the kind of conduct that the crime involves in âthe ordinary case,â and to judge whether that abstraction presentsâ some not-well-specified-yet-sufficiently-large degree of risk. Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578 . The result is that §16(b) produces, just as ACCAâs residual clause did, âmore unpredictability and arbitrariness than the Due Process Clause tolerates.â Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 579 ).
IV
The Government and dissents offer two fundamentally different accounts of how §16(b) can escape unscathed from our decision in Johnson. Justice Thomas accepts that the ordinary-case inquiry makes §16(b) âimpossible to apply.â Post, at 27. His solution is to overthrow our historic understanding of the statute: We should now read §16(b) , he says, to ask about the risk posed by a particular defendantâs particular conduct. In contrast, the Government, joined by THE CHIEF JUSTICE, accepts that §16(b) , as long interpreted, [***10] demands a categorical approach, rather than a case-specific one. They argue only that âdistinctive textual featuresâ of §16âs residual clause make applying it âmore predictableâ than its ACCA counterpart. Brief for Petitioner 28, 29. We disagree with both arguments.
A
The essentials of Justice Thomasâs position go as follows. Section 16(b) , he says, cannot have one meaning, but could have one of two others. See post, at 27. The provision cannot demand an inquiry merely into the elements of a crime, because that is the province of §16(a) . See supra, at 2 (setting out §16(a) âs text). But that still leaves a pair of options: the categorical, ordinary-case approach and the âunderlying-conduct approach,â which asks about the specific way in which a defendant committed a crime. Post, at 25. According to Justice Thomas, each option is textually viable (although he gives a slight nod to the latter based on §16(b) âs use of the word âinvolvesâ). See post, at 24-26. What tips the scales is that only oneâthe conduct approachâis at all âworkable.â Post, at 27. The difficulties of the ordinary-case inquiry, Justice Thomas rightly observes, underlie this Courtâs view that §16(b) is too vague. So abandon [**562] that inquiry, Justice Thomas urges. After all, he reasons, it is the Courtâs âplain duty,â under the constitutional avoidance canon, to adopt any reasonable construction of a statute that escapes constitutional problems. Post, at 28-29 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366 , 407 , 29 S. Ct. 527 , 53 L. Ed. 836 (1909)).
For anyone who has read Johnson, that argument will ring a bell. The dissent there issued the same invitation, based on much the same reasoning, to jettison the categorical approach in residual-clause cases. 576 U. S., at ___-___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 580-583 (opinion of Alito, J.). The Court declined to do so. It first noted that the Government had not asked us to switch to a fact-based inquiry. It then observed that the Court âhad good reasonsâ for originally adopting the categorical approach, based partly on ACCAâs text [*1217] (which, by the way, uses the word âinvolvesâ identically) and partly on the âutter impracticabilityâ of the alternative. Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 583 ) (majority opinion). âThe only plausible interpretationâ of ACCAâs residual clause, we concluded, ârequires use of the categorical approachââeven if that approach could not in the end satisfy constitutional standards. Ibid. (internal quotation marks and alteration omitted).
The same is true hereâexcept more so. To begin where Johnson did, the Government once again âhas not asked us to abandon the categorical approach in residual-clause cases.â Ibid. To the contrary, and as already noted, the Government has conceded at every step the correctness of that statutory construction. See supra, at 9. And this time, the Governmentâs decision is even more noteworthy than beforeâprecisely because the Johnson dissent laid out the opposite view, presenting it in prepackaged form for the Government to take off the shelf and use in the §16 (b) context. Of course, we are not foreclosed from going down Justice Thomasâs path just because the Government has not done so. But we find it significant [***11] that the Government cannot bring itself to say that the fact-based approach Justice Thomas proposes is a tenable interpretation of §16 âs residual clause.
Perhaps one reason for the Governmentâs reluctance is that such an approach would generate its own constitutional questions. As Justice Thomas relates, post, at 22, 28, this Court adopted the categorical approach in part to âavoid[ ] the Sixth Amendment concerns that would arise from sentencing courtsâ making findings of fact that properly belong to juries.â Descamps v. United States, 570 U. S. 254 , 267 , 133 S. Ct. 2276 , 186 L. Ed. 2d 438 (2013). Justice Thomas thinks that issue need not detain us here because âthe right of trial by jury ha[s] no application in a removal proceeding.â Post, at 28 (internal quotation marks omitted). But although this particular case involves removal, §16(b) is a criminal statute, with criminal sentencing consequences. See supra, at 2. And this Court has held (it could hardly have done otherwise) that âwe must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context.â Leocal, 543 U. S., at 12 , n. 8, 125 S. Ct. 377 , 160 L. Ed. 2d 271 . So Justice Thomasâs suggestion would [**563] merely ping-pong us from one constitutional issue to another. And that means the avoidance canon cannot serve, as he would like, as the interpretive tie breaker.
In any event, §16(b) âs text creates no draw: Best read, it demands a categorical approach. Our decisions have consistently understood language in the residual clauses of both ACCA and §16 to refer to âthe statute of conviction, not to the facts of each defendantâs conduct.â Taylor v. United States, 495 U. S. 575 , 601 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 (1990); see Leocal, 543 U. S., at 7 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 (Section 16 âdirects our focus to the âoffenseâ of conviction . . . rather than to the particular factsâ). Simple references to a âconviction,â âfelony,â or âoffense,â we have stated, are âread naturallyâ to denote the âcrime as generally committed.â Nijhawan v. Holder, 557 U. S. 29 , 34 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 (2009); see Leocal, 543 U. S., at 7 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 ; Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 583 . And the words âby its natureâ in §16(b) make that meaning all the clearer. The statute, recall, directs courts to consider whether an offense, by its nature, poses the requisite risk of force. An offenseâs ânatureâ means its ânormal and characteristic quality.â Websterâs Third New International Dictionary 1507 (2002). So §16(b) tells courts to figure out what an offense normallyâor, as we have repeatedly [*1218] said, âordinarilyââentails, not what happened to occur on one occasion. And the same conclusion follows if we pay attention to language that is missing from §16(b) . As we have observed in the ACCA context, the absence of terms alluding to a crimeâs circumstances, or its commission, makes a fact-based interpretation an uncomfortable fit. See Descamps, 570 U. S., at 267 , 133 S. Ct. 2276 , 186 L. Ed. 2d 438 . If Congress had wanted judges to look into a felonâs actual conduct, âit presumably would have said so; other statutes, in other contexts, speak in just that way.â Id., at 267-268 , 133 S.Ct. 2276 , 186 L. Ed. 2d 438 . 5 The upshot of all this textual evidence is that §16 âs residual clauseâlike ACCAâs, except still more plainlyâhas no âplausibleâ fact-based reading. Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 583 ).
And finally, the âutter impracticabilityââand associated inequitiesâof such an interpretation [***12] is as great in the one statute as in the other. Ibid . This Court has often described the daunting difficulties of accurately âreconstruct[ing],â often many years [**564] later, âthe conduct underlying [a] conviction.â Ibid .; Descamps, 570 U. S., at 270 , 133 S. Ct. 2276 , 186 L. Ed. 2d 438 ; Taylor, 495 U. S., at 601-602 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 . According to Justice Thomas, we need not worry here because immigration judges have some special factfinding talent, or at least experience, that would mitigate the risk of error attaching to that endeavor in federal courts. See post, at 30. But we cannot see putting so much weight on the superior factfinding prowess of (notoriously overburdened) immigration judges. And as we have said before, §16(b) is a criminal statute with applications outside the immigration context. See supra, at 2, 13. Once again, then, we have no ground for discovering a novel interpretation of §16(b) that would remove us from the dictates of Johnson .
B
Agreeing that is so, the Government (joined by THE CHIEF JUSTICE) takes a narrower path to the same desired result. It points to three textual discrepancies between ACCAâs residual clause and §16(b) , and argues that they make §16(b) significantly easier to apply. But each turns out to be the proverbial distinction without a difference. None relates to the pair of featuresâthe ordinary-case inquiry and a hazy risk thresholdâthat Johnson found to produce impermissible vagueness. And none otherwise affects the determinacy of the statutory inquiry into whether a prior conviction is for a violent crime. That is why, contrary to the Governmentâs final argument, the experience of applying both statutes has generated confusion and division among lower courts.
1
The Government firstâand foremostârelies on §16(b) âs express requirement [*1219] (absent from ACCA) that the risk arise from acts taken âin the course of committing the offense.â Brief for Petitioner 31. (THE CHIEF JUSTICEâs dissent echoes much of this argument. Seepost, at 6-7.) Because of that âtemporal restriction,â a court applying §16(b) may not âconsider risks arising afterâ the offenseâs commission is over. Ibid. In the Governmentâs view, §16(b) âs text thereby demands a âsignificantly more focused inquiryâ than did ACCAâs residual clause. Id., at 32.
To assess that claim, start with the meaning of §16(b) âs âin the course ofâ language. That phrase, understood in the normal way, includes the conduct occurring throughout a crimeâs commissionânot just the conduct sufficient to satisfy the offenseâs formal elements. The Government agrees with that construction, explaining that the words âin the course ofâ sweep in everything that happens while a crime continues. See Tr. of Oral Arg. 57-58 (Oct. 2, 2017) (illustrating that idea with reference to conspiracy, burglary, kidnapping, and escape from prison). So, for example, conspiracy may be a crime of violence under §16(b) because of the risk of force while the conspiracy is ongoing (i.e., âin the course ofâ the conspiracy); it is irrelevant that conspiracyâs elements are met as soon as the participants have made an agreement. See ibid.; United States v. Doe, 49 F. 3d 859 , 866 (CA2 1995). Similarly, and closer to home, burglary may be a crime of [***13] violence under §16(b) because of the prospects of an encounter while the burglar remains in a building [**565] (i.e., âin the course ofâ the burglary); it does not matter that the elements of the crime are met at the precise moment of his entry. See Tr. of Oral Arg. 57-58 (Oct. 2, 2017); James, 550 U. S., at 203 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . In other words, a court applying §16(b) gets to consider everything that is likely to take place for as long as a crime is being committed.
Because that is so, §16(b) âs âin the course ofâ language does little to narrow or focus the statutory inquiry. All that the phrase excludes is a courtâs ability to consider the risk that force will be used after the crime has entirely concludedâso, for example, after the conspiracy has dissolved or the burglar has left the building. We can construct law-school-type hypotheticals fitting that fact patternâsay, a burglar who constructs a booby trap that later knocks out the homeowner. But such imaginative forays cannot realistically affect a courtâs view of the ordinary case of a crime, which is all that matters under the statute. See supra, at 2-3, 7. In the ordinary case, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without §16(b) âs explicit temporal language, a court applying the section would do the same thingâask what usually happens when a crime goes down.
And that is just what courts did when applying ACCAâs residual clauseâand for the same reason. True, that clause lacked an express temporal limit. But not a single one of this Courtâs ACCA decisions turned on conduct that might occur after a crimeâs commission; instead, each hinged on the risk arising from events that could happen while the crime was ongoing. See, e.g., Sykes v. United States, 564 U. S. 1 , 10 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 (2011) (assessing the risks attached to the âconfrontations that initiate and terminateâ vehicle flight, along with âinterveningâ events); Chambers v. United States, 555 U. S. 122 , 128 , 129 S. Ct. 687 , 172 L. Ed. 2d 484 (2009) (rejecting the Governmentâs argument that violent incidents âoccur[ring] long afterâ a person unlawfully failed to report to prison rendered that crime a violent felony). Nor could those decisions have done otherwise, [*1220] given the statuteâs concern with the ordinary (rather than the outlandish) case. Once again, the riskiness of a crime in the ordinary case depends on the acts taken duringânot afterâits commission. Thus, the analyses under ACCAâs residual clause and §16(b) coincide.
The upshot is that the phrase âin the course ofâ makes no difference as to either outcome or clarity. Every offense that could have fallen within ACCAâs residual clause might equally fall within §16(b) . And the difficulty of deciding whether it does so remains just as intractable. Indeed, we cannot think of a single federal crime whose treatment becomes more obvious under §16(b) than under ACCA because of the words âin the course of.â 6 The [**566] phrase, then, cannot cure the statutory indeterminacy Johnson described.
Second, the Government (and again, THE CHIEF JUSTICEâs dissent, see post, at 6) observes that §16(b) focuses on the risk of âphysical forceâ whereas ACCAâs residual clause asked about the risk of âphysical injury.â [***14] The §16(b) inquiry, the Government says, âtrains solelyâ on the conduct typically involved in a crime. Brief for Petitioner 36. By contrast, the Government continues, ACCAâs residual clause required a second inquiry: After describing the ordinary criminalâs conduct, a court had to âspeculate about a chain of causation that could possibly result in a victimâs injury.â Ibid. The Governmentâs conclusion is that the §16(b) inquiry is âmore specific.â Ibid.
But once more, we struggle to see how that statutory distinction would matter. To begin with, the first of the Governmentâs two stepsâdefining the conduct in the ordinary caseâis almost always the difficult part. Once that is accomplished, the assessment of consequences tends to follow as a matter of course. So, for example, if a crime is likely enough to lead to a shooting, it will also be likely enough to lead to an injury. And still more important, §16(b) involves two steps as wellâand essentially the same ones. In interpreting statutes like §16(b) , this Court has made clear that âphysical forceâ means âforce capable of causing physical pain or injury.â Johnson v. United States, 559 U. S. 133 , 140 , 130 S. Ct. 1265 , 176 L. Ed. 2d 1 (2010) (defining the term for purposes of deciding what counts as a âviolentâ crime). So under §16(b) too, a court must not [*1221] only identify the conduct typically involved in a crime, but also gauge its potential consequences. Or said a bit differently, evaluating the risk of âphysical forceâ itself entails considering the risk of âphysical injury.â For those reasons, the force/injury distinction is unlikely to affect a courtâs analysis of whether a crime qualifies as violent. All the same crimes mightâor, then again, might notâsatisfy both requirements. Accordingly, this variance in wording cannot make ACCAâs residual clause vague and §16(b) not.
Third, the Government briefly notes that §16(b) , unlike ACCAâs residual clause, is not preceded by a âconfusing list of exemplar crimes.â Brief for Petitioner 38. (THE CHIEF JUSTICEâs dissent reiterates this argument, with some additional references to our caselaw. See post, at 10-12.) [**567] Here, the Government is referring to the offenses ACCA designated as violent felonies independently of the residual clause (i.e., burglary, arson, extortion, and use of explosives). See supra, at 4. According to the Government, those crimes provided âcontradictory and opaque indicationsâ of what non-specified offenses should also count as violent. Brief for Petitioner 38. Because §16(b) lacks any such enumerated crimes, the Government concludes, it avoids the vagueness of ACCAâs residual clause.
We readily accept a part of that argument. This Court for several years looked to ACCAâs listed crimes for help in giving the residual clause meaning. See, e.g., Begay v. United States, 553 U. S. 137 , 142 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 (2008); James, 550 U. S., at 203 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . But to no avail. As the Government relates (and Johnson explained), the enumerated crimes were themselves too varied to provide such assistance. See Brief for Petitioner 38-40; 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 582 . Trying to reconcile them with each other, and then compare them to whatever unlisted crime was at issue, drove many a judge a little batty. And more to [***15] the point, the endeavor failed to bring any certainty to the residual clauseâs application. See Brief for Petitioner 38-40.
But the Governmentâs conclusion does not follow. To say that ACCAâs listed crimes failed to resolve the residual clauseâs vagueness is hardly to say they caused the problem. Had they done so, Johnson would not have needed to strike down the clause. It could simply have instructed courts to give up on trying to interpret the clause by reference to the enumerated offenses. (Contrary to THE CHIEF JUSTICEâs suggestion, see post, at 12, discarding an interpretive tool once it is found not to actually aid in interpretation hardly âexpand[s]â the scope of a statute.) That Johnson went so much furtherâinvalidating a statutory provision rather than construing it independently of anotherâdemonstrates that the list of crimes was not the culprit. And indeed, Johnson explicitly said as much. As described earlier, Johnson found the residual clauseâs vagueness to reside in just âtwoâ of its features: the ordinary-case requirement and a fuzzy risk standard. See 576 U. S. , at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578-579 ; supra, at 7-8. Strip away the enumerated crimesâas Congress did in §16(b) âand those dual flaws yet remain. And ditto the textual indeterminacy that flows from them.
2
Faced with the two clausesâ linguistic similarity, the Government relies significantly on an argument rooted in judicial experience. Our opinion in Johnson, the Government notes, spoke of the longstanding âtroubleâ that this Court and others had in âmaking sense of [ACCAâs] residual clause.â [*1222] 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 581 ); see Brief for Petitioner 45. According to the Government, §16(b) has not produced âcomparable difficulties.â Id., at 46 . Lower courts, the Government claims, have divided less often about the provisionâs meaning, and as a result this Court granted certiorari on âonly a single Section 16(b) caseâ before [**568] this one. Ibid . 7 âThe most likely explanation,â the Government concludes, is that âSection 16(b) is clearerâ than its ACCA counterpart. Id., at 47 .
But in fact, a host of issues respecting §16(b) âs application to specific crimes divide the federal appellate courts. Does car burglary qualify as a violent felony under §16(b) ? Some courts say yes, another says no. 8 What of statutory rape? Once again, the Circuits part ways. 9 How about evading arrest? The decisions point in different directions. 10 Residential trespass? The same is true. 11 Those examples do not exhaust the current catalogue of Circuit conflicts concerning §16(b) âs application. See Brief for National Immigration Project of the National Lawyers Guild et al. as Amici Curiae 7-18 (citing divided appellate decisions as to the unauthorized use of a vehicle, firearms possession, and abduction). And that roster would just expand with time, mainly because, as Johnson explained, precious few crimes (of the thousands that fill the statute books) have an obvious, non-speculativeâand therefore undisputedââordinary case.â See 576 U. S., at ___-___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 578-579 ).
Nor does this Courtâs prior handling of §16(b) cases support the Governmentâs argument. To be sure, we have heard oral [***16] argument in only two cases arising from §16(b) (including this one), as compared with five involving ACCAâs residual clause (including Johnson). 12 But while some of [*1223] those ACCA suits were pending before us, we received a number of petitions for certiorari presenting related issues [**569] in the §16(b) context. And after issuing the relevant ACCA decisions, we vacated the judgments in those §16(b) cases and remanded them for further consideration. 13 That we disposed of the ACCA and §16(b) petitions in that order, rather than its opposite, provides no reason to disregard the indeterminacy that §16(b) shares with ACCAâs residual clause.
And of course, this Courtâs experience in deciding ACCA cases only supports the conclusion that §16(b) is too vague. For that record reveals that a statute with all the same hallmarks as §16(b) could not be applied with the predictability the Constitution demands. See id ., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 6-9); supra, at 6-9. The Government would condemn us to repeat the pastâto rerun the old ACCA tape, as though we remembered nothing from its first showing. But why should we disregard a lesson so hard learned? âInsanity,â Justice Scalia wrote in the last ACCA residual clause case before Johnson, âis doing the same thing over and over again, but expecting different results.â Sykes, 564 U. S., at 28 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 (dissenting opinion). We abandoned that lunatic practice in Johnson and see no reason to start it again.
V
Johnson tells us how to resolve this case. That decision held that â[t]wo features of [ACCAâs] residual clause conspire[d] to make it unconstitutionally vague.â 576 U. S., at ___ , 135 S. Ct. 2551 , 2554 , 192 L. Ed. 2d 569 , 575 . Because the clause had both an ordinary-case requirement and an ill-defined risk threshold, it necessarily âdevolv[ed] into guesswork and intuition,â invited arbitrary enforcement, and failed to provide fair notice. Id ., at ___, 135 S. Ct. 2551 , 2559 , 192 L. Ed. 2d 569 , 580 . Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCAâs residual clause, §16(b) âproduces more unpredictability and arbitrariness than the Due Process Clause tolerates.â Id ., at ___, 135 S. Ct. 2551 , 2558 , 192 L. Ed. 2d 569 , 579 . We accordingly affirm the judgment of the Court of Appeals.
It is so ordered.
GORSUCH (In Part)
Justice Gorsuch, concurring in part and concurring in the judgment.
Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crownâs abuse of âpretendedâ crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Todayâs [**570] vague laws may not be as invidious, but they can invite the exercise of arbitrary [*1224] power all the sameâby leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.
The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary [***17] case of the alienâs crime of conviction involves a substantial risk that physical force may be used. But what does that mean? 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 lawâs silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.
*
I begin with a foundational question. Writing for the Court in Johnson v. United States, 576 U. S. ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (2015), Justice Scalia held the residual clause of the Armed Career Criminal Act void for vagueness because it invited âmore unpredictability and arbitrarinessâ than the Constitution allows. Id ., at ___, 135 S. Ct. 2551 , 2558 , 192 L. Ed. 2d 579 . Because the residual clause in the statute now before us uses almost exactly the same language as the residual clause in Johnson, respect for precedent alone would seem to suggest that both clauses should suffer the same judgment.
But first in Johnson and now again today Justice Thomas has questioned whether our vagueness doctrine can fairly claim roots in the Constitution as originally understood. See, e.g., post, at 2-6 (dissenting opinion); Johnson, supra , at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion concurring in judgment) ( slip op., at 6-18). For its part, the Court has yet to offer a reply. I believe our colleagueâs challenge is a serious and thoughtful one that merits careful attention. At dayâs end, though, it is a challenge to which I find myself unable to subscribe. Respectfully, I am persuaded instead that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.
Consider first the doctrineâs due process underpinnings. The Fifth and Fourteenth Amendments guarantee that âlife, liberty, or propertyâ may not be taken âwithout due process of law.â That means the government generally may not deprive a person of those rights without affording him the benefit of (at least) those âcustomary procedures to which freemen were entitled by the old law of England.â Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 , 28 , 111 S. Ct. 1032 , 113 L. Ed. 2d 1 (1991) (Scalia, J., concurring in judgment) (internal quotation marks omitted). Admittedly, some have suggested that the Due Process Clause does less work than this, allowing the government to deprive people of their liberty through whatever procedures (or lack of them) the governmentâs current laws may tolerate. Post, at 3, n. 1 (opinion of Thomas, J.) (collecting [**571] authorities). But in my view the weight of the historical evidence shows that the clause sought to ensure that the peopleâs rights are never any less secure against governmental invasion than they were at common law. Lord Coke took this view of the English due process guarantee. 1 E. Coke, The Second Part of the Institutes of [*1225] the Laws of England 50 (1797). John Rutledge, our second Chief [***18] Justice, explained that Cokeâs teachings were carefully studied and widely adopted by the framers, becoming ââalmost the foundations of our law.ââ Klopfer v. North Carolina, 386 U. S. 213 , 225 , 87 S. Ct. 988 , 18 L. Ed. 2d 1 (1967). And many more students of the Constitution besidesâfrom Justice Story to Justice Scaliaâhave agreed that this view best represents the original understanding of our own Due Process Clause. See, e.g., Murrayâs Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 , 18 How. 272 , 277 , 15 L. Ed. 372 (1856); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833); Pacific Mut., supra, at 28-29 , 111 S. Ct. 1032 , 113 L. Ed. 2d 1 (opinion of Scalia, J.); Eberle, Procedural Due Process: The Original Understanding, 4 Const. Comment. 339, 341 (1987).
Perhaps the most basic of due processâs customary protections is the demand of fair notice. See Connally v. General Constr. Co., 269 U. S. 385 , 391 , 46 S. Ct. 126 , 70 L. Ed. 322 (1926); see also Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542 , 543 (2009) (âFrom the inception of Western culture, fair notice has been recognized as an essential element of the rule of lawâ). Criminal indictments at common law had to provide âprecise and sufficient certaintyâ about the charges involved. 4 W. Blackstone, Commentaries on the Laws of England 301 (1769) (Blackstone). Unless an âoffence [was] set forth with clearness and certainty,â the indictment risked being held void in court. Id., at 302 (emphasis deleted); 2 W. Hawkins, Pleas of the Crown, ch. 25, §§99, 100, pp. 244-245 (2d ed. 1726) (â[I]t seems to have been anciently the common practice, where an indictment appeared to be [in]sufficient, either for its uncertainty or the want of proper legal words, not to put the defendant to answer itâ).
The same held true in civil cases affecting a personâs life, liberty, or property. A civil suit began by obtaining a writâa detailed and specific form of action asking for particular relief. Bellia, Article III and the Cause of Action, 89 Iowa L. Rev. 777, 784-786 (2004); Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 914-915 (1987). Because the various civil writs were clearly defined, English subjects served with one would know with particularity what legal requirement they were alleged to have violated and, accordingly, what would be at issue in court. Id., at 917; Moffitt, Pleadings in the Age of Settlement, 80 Ind. L. J. 727, 731 (2005). And a writ risked being held defective if it didnât provide fair notice. Goldington v. Bassingburn, Y. B. Trin. 3 Edw. II, f. 27b (1310) (explaining that it was âthe law of the landâ that âno one [could] be taken by surpriseâ by having to âanswer in court for what [one] has not been warned to answerâ).
The requirement of fair notice applied to statutes too. Blackstone illustrated the point with a case involving [**572] a statute that made âstealing sheep, or other cattleâ a felony. 1 Blackstone 88 (emphasis deleted). Because the term âcattleâ embraced a good deal more then than it does now (including wild animals, no less), the court held the statute failed to provide adequate notice about what it did and did not coverâand so the court treated the term âcattleâ as a nullity. Ibid. All of which, Blackstone added, had the salutary effect of inducing the legislature to reenter the field and make [***19] itself clear by passing a new law extending the statute to âbulls, cows, oxen,â and more âby name.â Ibid.
This tradition of courts refusing to apply vague statutes finds parallels in early American practice as well. In [*1226] The Enterprise, 8 F. Cas. 732 , F. Cas. No. 4499 (No. 4,499) (CC NY 1810), for example, Justice Livingston found that a statute setting the circumstances in which a ship may enter a port during an embargo was too vague to be applied, concluding that âthe court had better passâ the statutory terms by âas unintelligible and uselessâ rather than âput on them, at great uncertainty, a very harsh signification, and one which the legislature may never have designed.â Id., at 735 . In United States v. Sharp, 27 F. Cas. 1041 , F. Cas. No. 16264 (No. 16,264) (CC Pa. 1815), Justice Washington confronted a statute which prohibited seamen from making a ârevolt.â Id., at 1043 . But he was unable to determine the meaning of this provision âby any authority . . . either in the common, admiralty, or civil law.â Ibid. As a result, he declined to ârecommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be.â Ibid. 1
Nor was the concern with vague laws confined to the most serious offenses like capital crimes. Courts refused to apply vague laws in criminal cases involving relatively modest penalties. See, e.g., McJunkins v. State, 10 Ind. 140 , 145 (1858). They applied the doctrine in civil cases too. See, e.g., Drake v. Drake, 15 N. C. 110 , 115 (1833); Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg. 173, 177 (Pa. 1842). As one court put it, âall lawsâ âought to be expressed in such a [**573] manner as that its meaning may be unambiguous, and in such language as may be readily understood by those upon whom it is to operate.â McConvill v. Mayor and Aldermen of Jersey City, 39 N. J. L. 38 , 42 (1876). ââIt is impossible . . . to dissent from the doctrine of Lord Coke, that acts of parliament ought to be plainly and clearly, and not cunningly and darkly penned, especially in penal matters.ââ Id., at 42-43.
These early cases, admittedly, often spoke in terms of construing vague laws strictly rather than declaring them void. See, e.g., post, at 4-5 (opinion of Thomas, J.); Johnson, 576 U. S., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) (slip op., at 8-10). But in substance void the law is often exactly what these courts did: rather than try to construe or interpret [*1227] the statute before them, judges frequently held the law simply too vague to apply. Blackstone, for example, did not suggest the court in his illustration should have given a narrowing construction to the term âcattle,â but argued against giving it any effect at all. 1 Blackstone 88; see also Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581 , 582 (1989) (âI doubt . . . that any modern court would go to the lengths described by Blackstone in its application of the rule that penal statutes are to be strictly construedâ); Note, Indefinite Criteria of Definiteness in Statutes, 45 Harv. L. Rev. 160 , n. 3 (1931) (explaining that âsince strict construction, in effect, nullified ambiguous provisions, it was but a short step to declaring them void ab initioâ); supra, at 5, n. 1 (state courts holding vague statutory terms âvoidâ or ânullâ).
What history suggests, the structure of the Constitution confirms. Many of the Constitutionâs other [***20] provisions presuppose and depend on the existence of reasonably clear laws. Take the Fourth Amendmentâs requirement that arrest warrants must be supported by probable cause, and consider what would be left of that requirement if the alleged crime had no meaningful boundaries. Or take the Sixth Amendmentâs mandate that a defendant must be informed of the accusations against him and allowed to bring witnesses in his defense, and consider what use those rights would be if the charged crime was so vague the defendant couldnât tell what heâs alleged to have done and what sort of witnesses he might need to rebut that charge. Without an assurance that the laws supply fair notice, so much else of the Constitution risks becoming only a âparchment barrie[r]â against arbitrary power. The Federalist No. 48, p. 308 (C. Rossiter ed. 1961) (J. Madison).
Although todayâs vagueness doctrine owes much to the guarantee of fair notice embodied in the Due Process Clause, it would be a mistake to overlook the doctrineâs equal debt to the separation of powers. The Constitution assigns â[a]ll legislative Powersâ in our federal government to Congress. Art. I, §1 . It is for the people, through their elected representatives, to choose the rules that will govern their future conduct. See The Federalist No. 78, at 465 (A. Hamilton) (âThe legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulatedâ). [**574] Meanwhile, the Constitution assigns to judges the âjudicial Powerâ to decide âCasesâ and âControversies.â Art. III, §2 . That power does not license judges to craft new laws to govern future conduct, but only to âdiscer[n] the course prescribed by lawâ as it currently exists and to âfollow itâ in resolving disputes between the people over past events. Osborn v. Bank of United States, 22 U.S. 738 , 866 , 9 Wheat. 738 , 6 L. Ed. 204 (1824).
From this division of duties, it comes clear that legislators may not âabdicate their responsibilities for setting the standards of the criminal law,â Smith v. Goguen, 415 U. S. 566 , 575 , 94 S. Ct. 1242 , 39 L. Ed. 2d 605 (1974), by leaving to judges the power to decide âthe various crimes includable in [a] vague phrase,â Jordan v. De George, 341 U. S. 223 , 242 , 71 S. Ct. 703 , 95 L. Ed. 886 (1951) (Jackson, J., dissenting). For âif the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large[,] [t]his would, to some extent, substitute the judicial for the legislative department of government.â Kolender v. Lawson, 461 U. S. 352 , 358 , n. 7, 103 S. Ct. 1855 , 75 L. Ed. 2d 903 (1983) (internal quotation marks omitted). Nor is the worry only that vague laws risk allowing judges to [*1228] assume legislative power. Vague laws also threaten to transfer legislative power to police and prosecutors, leaving to them the job of shaping a vague statuteâs contours through their enforcement decisions. See Grayned v. City of Rockford, 408 U. S. 104 , 108-109 , 92 S. Ct. 2294 , 33 L. Ed. 2d 222 (1972) (âA vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basisâ).
These structural worries are more than just formal ones. Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product [***21] of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to âcondem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.â Jordan, supra, at 242 , 71 S. Ct. 703 , 95 L.Ed. 886 (Jackson, J., dissenting). Nor do judges and prosecutors act in the open and accountable forum of a legislature, but in the comparatively obscure confines of cases and controversies. See, e.g., A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 151 (1962) (âA vague statute delegates to administrators, prosecutors, juries, and judges the authority of ad hoc decision, which is in its nature difficult if not impossible to hold to account, because of its narrow impactâ). For just these reasons, Hamilton warned, while âliberty can have nothing to fear from the judiciary alone,â it has âevery thing to fear fromâ the union of the judicial and legislative powers. The Federalist No. 78, at 466. No doubt, too, for reasons like these this Court has held âthat the more important aspect of vagueness doctrine âis not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcementââ and keep the separate branches within [**575] their proper spheres. Kolender, supra, at 358 , 103 S. Ct. 1855 , 75 L. Ed. 2d 9l03 (quoting Goguen, supra, at 575 , 94 S. Ct. 1242 , 39 L. Ed. 2d 605 (emphasis added)).
*
Persuaded that vagueness doctrine enjoys a secure footing in the original understanding of the Constitution, the next question I confront concerns the standard of review. What degree of imprecision should this Court tolerate in a statute before declaring it unconstitutionally vague? For its part, the government argues that where (as here) a person faces only civil, not criminal, consequences from a statuteâs operation, we should declare the law unconstitutional only if it is âunintelligible.â But in the criminal context this Court has generally insisted that the law must afford âordinary people . . . fair notice of the conduct it punishes.â Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 3). And I cannot see how the Due Process Clause might often require any less than that in the civil context either. Fair notice of the lawâs demands, as weâve seen, is âthe first essential of due process.â Connally, 269 U. S., at 391 , 46 S. Ct. 126 , 70 L. Ed. 322 . And as weâve seen, too, the Constitution sought to preserve a common law tradition that usually aimed to ensure fair notice before any deprivation of life, liberty, or property could take place, whether under the banner of the criminal or the civil law. See supra, at 2-7.
First principles aside, the government suggests that at least this Courtâs precedents support adopting a less-than-fair-notice standard for civil cases. But even that much I do not see. This Court has already expressly held that a âstringent vagueness testâ should apply to at least some civil lawsâthose abridging basic [*1229] First Amendment freedoms. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 499 , 102 S. Ct. 1186 , 71 L. Ed. 2d 362 (1982). This Court has made clear, too, that due process [***22] protections against vague laws are ânot to be avoided by the simple label a State chooses to fasten upon its conduct or its statute.â Giaccio v. Pennsylvania, 382 U. S. 399 , 402 , 86 S. Ct. 518 , 15 L. Ed. 2d 447 (1966). So the happenstance that a law is found in the civil or criminal part of the statute books cannot be dispositive. To be sure, this Court has also said that what qualifies as fair notice depends âin part on the nature of the enactment.â Hoffman Estates, 455 U. S., at 498 , 102 S. Ct. 1186 , 71 L. Ed. 2d 362 . And the Court has sometimes âexpressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.â Id., at 498-499 , 102 S. Ct. 1186 , 71 L. Ed. 2d 362 . But to acknowledge these truisms does nothing to prove that civil laws must always be subject to the governmentâs emaciated form of review.
In fact, if the severity of the consequences counts when deciding the standard of review, shouldnât we also take account of the fact that todayâs civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Todayâs âcivilâ penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be [**576] taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimesâand often harsher than the punishment for felonies. And not only are âpunitive civil sanctions . . . rapidly expanding,â they are âsometimes more severely punitive than the parallel criminal sanctions for the same conduct.â Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L. J. 1795 , 1798 (1992) (emphasis added). Given all this, any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedentâs current threshold than to suggest the civil standard should be buried below it.
Retreating to a more modest line of argument, the government emphasizes that this case arises in the immigration context and so implicates matters of foreign relations where the Executive enjoys considerable constitutional authority. But to acknowledge that the President has broad authority to act in this general area supplies no justification for allowing judges to give content to an impermissibly vague law.
Alternatively still, Justice Thomas suggests that, at least at the time of the founding, aliens present in this country may not have been understood as possessing any rights under the Due Process Clause. For support, he points to the Alien Friends Act of 1798. An Act Concerning Aliens §1, 1 Stat. 571 ; post, at 6-12 (opinion of Thomas, J.). But the Alien Friends Actâbetter known as the âAlienâ part of the Alien and Sedition Actsâis one of the most notorious laws in our countryâs history. It was understood as a temporary war measure, not one that the legislature would [***23] endorse in a time of tranquility. See, e.g., Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Intâl L. 63, 70-71 (2002). Yet even then it was widely condemned as unconstitutional by Madison and many others. It also went unenforced, may have cost the Federalist Party [*1230] its existence, and lapsed a mere two years after its enactment. With this fuller view, it seems doubtful the Act tells us a great deal about aliensâ due process rights at the founding. 2
[**577] Besides, none of this much matters. Whether Madison or his adversaries had the better of the debate over the constitutionality of the Alien Friends Act, Congress is surely free to extend existing forms of liberty to new classes of personsâliberty that the government may then take only after affording due process. See, e.g., Sandin v. Conner, 515 U. S. 472 , 477-478 , 115 S. Ct. 2293 , 132 L. Ed. 2d 418 (1995); Easterbrook, Substance and Due Process, 1982 S. Ct. Rev. 85, 88 (âIf . . . the constitution, statute, or regulation creates a liberty or property interest, then the second stepâdetermining âwhat process is dueââcomes into playâ). Madison made this very point, suggesting an alienâs admission in this country could in some circumstances be analogous to âthe grant of land to an individual,â which âmay be of favor not of right; but the moment the grant is made, the favor becomes a right, and must be forfeited before it can be taken away.â Madisonâs Report 319. And, of course, thatâs exactly what Congress eventually chose to do here. Decades ago, it enacted a law affording Mr. Dimaya lawful permanent residency in this country, extending to him a statutory liberty interest others traditionally have enjoyed to remain in and move about the country free from physical imprisonment and restraint. See Dimaya v. Lynch, 803 F. 3d 1110 , 1111 (CA9 2015); 8 U. S. C. §§1101(a)(20) , 1255 . No one suggests Congress had to enact statutes of this sort. And exactly what processes must attend the deprivation of a statutorily afforded liberty interest like this may pose serious and debatable questions. Cf. Murrayâs Lessee, 59 U.S. 272 , 18 How., at 277 , 15 L. Ed. 372 (approving summary procedures in another context). But however summary those procedures might be, itâs hard to fathom why fair notice of the lawâthe most venerable of due processâs [*1231] requirementsâwould not be among them. Connally, 269 U. S. , at 391 , 46 S. Ct. 126 , 70 L. Ed. 322 . 3
[**578] Today, a plurality of the Court agrees that we should reject the governmentâs plea for a feeble standard of review, but for a different reason. Ante, at 5-6. My colleagues suggest the law before us should be assessed under the fair notice standard because of the special gravity of its civil deportation penalty. But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his familyâs living, or confiscate his home? I can think of no good answer.
*
With the fair notice standard now in hand, all that remains is to ask how it [***24] applies to the case before us. And here at least the answer comes readily for me: to the extent it requires an âordinary caseâ analysis, the portion of the Immigration and Nationality Act before us fails the fair notice test for the reasons Justice Scalia identified in Johnson and the Court recounts today.
Just like the statute in Johnson, the statute here instructs courts to impose special penalties on individuals previously âconvicted ofâ a âcrime of violence.â 8 U. S. C. §§1227(a)(2)(A)(iii) , 1101(a)(43)(F) . Just like the statute in Johnson, the statute here fails to specify which crimes qualify for that label. Instead, and again like the statute in Johnson, the statute here seems to require a judge to guess about the ordinary case of the crime of conviction and then guess whether a âsubstantial riskâ of âphysical forceâ attends its commission. 18 U. S. C. §16(b) ; Johnson, 576 U. S., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 ( slip op., at 4-5). Johnson held that a law that asks so much of courts while offering them so little by way of guidance is unconstitutionally vague. And I do not see how we might reach a different judgment here.
Any lingering doubt is resolved for me by taking account of just some of the [*1232] questions judges trying to apply the statute using an ordinary case analysis would have to confront. Does a conviction for witness tampering ordinarily involve a threat to the kneecaps or just the promise of a bribe? Does a conviction for kidnapping ordinarily involve throwing someone into a car trunk or a noncustodial parent picking up a child from daycare? These questions do not suggest obvious answers. Is the court supposed to hold evidentiary hearings to sort them out, entertaining experts with competing narratives and statistics, before deciding what the ordinary case of a given crime looks like and how much risk of violence it poses? What is the judge to do if there arenât any reliable statistics available? Should (or must) the judge predict [**579] the effects of new technology on what qualifies as the ordinary case? After all, surely the risk of injury calculus for crimes like larceny can be expected to change as more thefts are committed by computer rather than by gunpoint. Or instead of requiring real evidence, does the statute mean to just leave it all to a judicial hunch? And on top of all that may be the most difficult question yet: at what level of generality is the inquiry supposed to take place? Is a court supposed to pass on the ordinary case of burglary in the relevant neighborhood or county, or should it focus on statewide or even national experience? How is a judge to know? How are the people to know?
The implacable fact is that this isnât your everyday ambiguous statute. It leaves the people to guess about what the law demandsâand leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statuteâs text, structure, or history will yield a clue. Nor does the statute call for the application of some preexisting body of law familiar to the judicial power. The statute doesnât even ask for [***25] application of common experience. Choice, pure and raw, is required. Will, not judgment, dictates the result.
*
Having said this much, it is important to acknowledge some limits on todayâs holding too. I have proceeded on the premise that the Immigration and Nationality Act, as it incorporates §16(b) of the criminal code, commands courts to determine the risk of violence attending the ordinary case of conviction for a particular crime. I have done so because no party before us has argued for a different way to read these statutes in combination; because our precedent seemingly requires this approach; and because the government itself has conceded (repeatedly) that the law compels it. Johnson, supra , at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 13); Taylor v. United States, 495 U. S. 575 , 600 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 (1990); Brief for Petitioner 11, 30, 32, 36, 40, 47 (conceding that an ordinary case analysis is required).
But any more than that I would not venture. In response to the problems engendered by the ordinary case analysis, Justice Thomas suggests that we should overlook the governmentâs concession about the propriety of that approach; reconsider our precedents endorsing it; and read the statute as requiring us to focus on the facts of the alienâs crime as committed rather than as the facts appear in the ordinary case of conviction. Post, at 20-32. But normally courts do not rescue parties from their concessions, maybe least of all concessions from a party as able to protect its interests as the federal government. And normally, too, the crucible of adversarial testing is crucial to sound judicial decisionmaking. We rely on it to âyield insights (or reveal pitfalls) we cannot muster guided only by our own [*1233] lights.â Maslenjak v. United States, 582 U. S. ___ , ___, 137 S. Ct. 1918 , 198 L. Ed. 2d 460 (2017) (Gorsuch, J., concurring in part and concurring in judgment) (slip op., at 2).
While sometimes we may or even must forgo the adversarial process, I do not see the case for doing so today. Maybe especially because I am not [**580] sure Justice Thomasâs is the only available alternative reading of the statute we would have to consider, even if we did reject the governmentâs concession and wipe the precedential slate clean. We might also have to consider an interpretation that would have courts ask not whether the alienâs crime of conviction ordinarily involves a risk of physical force, or whether the defendantâs particular crime involved such a risk, but whether the defendantâs crime of conviction always does so. After all, the language before us requires a conviction for an âoffense . . . that, by its nature, involves a substantial risk of physical force.â 18 U. S. C. §16(b) (emphasis added). Plausibly, anyway, the word ânatureâ might refer to an inevitable characteristic of the offense; one that would present itself automatically, whenever the statute is violated. See 10 Oxford English Dictionary 247 (2d ed. 1989). While I remain open to different arguments about our precedent and the proper reading of language like this, I would address them in another case, whether involving the INA or a different statute, where the parties have a chance to be heard and we might benefit from their learning.
Itâs important [***26] to note the narrowness of our decision today in another respect too. Vagueness doctrine represents a procedural, not a substantive, demand. It does not forbid the legislature from acting toward any end it wishes, but only requires it to act with enough clarity that reasonable people can know what is required of them and judges can apply the law consistent with their limited office. Our history surely bears examples of the judicial misuse of the so-called âsubstantive componentâ of due process to dictate policy on matters that belonged to the people to decide. But concerns with substantive due process should not lead us to react by withdrawing an ancient procedural protection compelled by the original meaning of the Constitution.
Todayâs decision sweeps narrowly in yet one more way. By any fair estimate, Congress has largely satisfied the procedural demand of fair notice even in the INA provision before us. The statute lists a number of specific crimes that can lead to a lawful residentâs removalâfor example, murder, rape, and sexual abuse of a minor. 8 U. S. C. §1101(a)(43)(A) . Our ruling today does not touch this list. We address only the statuteâs âresidual clauseâ where Congress ended its own list and asked us to begin writing our own. Just as Blackstoneâs legislature passed a revised statute clarifying that âcattleâ covers bulls and oxen, Congress remains free at any time to add more crimes to its list. It remains free, as well, to write a new residual clause that affords the fair notice lacking here. Congress might, for example, say that a conviction for any felony carrying a prison sentence of a specified length opens an alien to removal. Congress has done almost exactly this in other laws. See, e.g., 18 U. S. C. §922(g) . What was done there could be done here.
But those laws are not this law. And while the statute before us doesnât rise to the level of threatening death for âpretended offencesâ of treason, no one should be surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it. A government of laws and not [*1234] of men can never tolerate that arbitrary [**581] power. And, in my judgment, that foundational principle dictates todayâs result. Because I understand them to be consistent with what I have said here, I join Parts I, III, IV-B, and V of the Courtâs opinion and concur in the judgment.
ROBERTS; THOMAS
Chief Justice Roberts, with whom Justice Kennedy, Justice Thomas, and Justice Alito join, dissenting.
In Johnson v. United States, we concluded that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, given the âindeterminacy of the wide-ranging inquiryâ it required. , 576 U. S. ___ , ___, 135 S. Ct. 2551 , 2557 , 192 L. Ed. 2d 569 , 578 (2015). Today, the Court relies wholly on Johnsonâbut only some of Johnsonâto strike down another provision, 18 U. S. C. §16(b) . Because §16(b) does not give rise to the concerns that drove the Courtâs decision in Johnson, I respectfully dissent.
I
The term âcrime of violenceâ appears repeatedly throughout the Federal Criminal Code. Section 16 of Title 18 defines it to mean:
â(a) an offense that [***27] has as an element the use, attempted use, or threatened use of physical force against
the person or property of another, or
â(b) any other offense that is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be used in
the course of committing the offense.â
This definition of âcrime of violenceâ is also incorporated in the definition of âaggravated felonyâ in the Immigration and Nationality Act. 8 U. S. C. §1101(a)(43)(F) (âaggravated felonyâ includes âa crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one yearâ (footnote omitted)). A conviction for an aggravated felony carries serious consequences under the immigration laws. It can serve as the basis for an alienâs removal from the United States, and can preclude cancellation of removal by the Attorney General. §§1227(a)(2)(A) (iii), 1229b(a)(3) .
Those consequences came to pass in respondent James Dimayaâs case. An Immigration Judge and the Board of Immigration Appeals interpreted §16(b) to cover Dimayaâs two prior convictions for first-degree residential burglary under California law, subjecting him to removal. To stave off that result, Dimaya argued that the language of §16(b) was void for vagueness under the Due Process Clause of the Fifth Amendment .
The parties begin by disputing whether a criminal or more relaxed civil vagueness standard should apply in resolving Dimayaâs challenge. A plurality of the Court rejects the Governmentâs argument in favor of a civil standard, because of the âgrave nature of deportation,â Jordan v. De George, 341 U. S. 223 , 231 , 71 S. Ct. 703 , 95 L. Ed. 886 (1951); see ante, at 6 (plurality opinion); Justice Gorsuch does so for broader reasons, see ante, at 10-15 (Gorsuch, J., concurring in part and concurring in judgment). I see no need to resolve which standard applies, because I would hold that §16(b) is not [**582] unconstitutionally vague even under the standard applicable to criminal laws.
II
This is not our first encounter with §16(b) . In Leocal v. Ashcroft, 543 U. S. 1 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 (2004), we were asked to decide whether either subsection of §16 covers a particular category of state crimes, specifically DUI offenses [*1235] involving no more than negligent conduct. 543 U. S., at 6 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 . Far from finding §16(b) âhopeless[ly] indetermina[te],â Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 7), we considered the provision clear and unremarkable: âwhile §16(b) is broader than §16(a) in the sense that physical force need not actually be applied,â the provision âsimply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense,â Leocal, 543 U. S., at 10-11 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 . Applying that standard to the state offense at issue, we concludedâunanimouslyâthat §16(b) âcannot be read to include [a] conviction for DUI causing serious bodily injury under Florida law.â Id., at 11 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 .
Leocal thus provides a model for how courts should assess whether a particular crime âby its natureâ involves a risk of the use of physical force. At the outset, our opinion set forth the elements of the Florida DUI statute, which made it a [***28] felony âfor a person to operate a vehicle while under the influence and, âby reason of such operation, caus[e] . . . [s]erious bodily injury to another.ââ 543 U. S., at 7 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 . Our §16(b) analysis, in turn, focused on those specific elements in concluding that a Florida offenderâs acts would not naturally give rise to the requisite risk of force âin the course of committing the offense.â Id., at 11 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 . âIn no âordinary or naturalâ sense,â we explained, âcan it be said that a person risks having to âuseâ physical force against another person in the course of operating a vehicle while intoxicated and causing injury.â Ibid.
The Court holds that the same provision we had no trouble applying in Leocal is in fact incapable of reasoned application. The sole justification for this turnabout is the resemblance between the language of §16(b) and the language of the residual clause of the Armed Career Criminal Act (ACCA) that was at issue in Johnson. The latter provision defined a âviolent felonyâ to include âany crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.â 18 U. S. C. §924(e)(2)(B)(ii) (emphasis added).
In Johnson, we concluded that the ACCA residual clause (the âor otherwiseâ language) gave rise to two forms of intractable uncertainty, which âconspire[d]â to render the provision unconstitutionally vague. 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 ( slip op., at 5). First, the residual clause asked courts to gauge the âpotential riskâ of âphysical injuryâ posed by the conduct involved in the crime. Ibid. That inquiry, we determined, entailed not only an evaluation of the âcriminalâs behavior,â but also required courts to consider âhow the idealized ordinary [**583] case of the crime subsequently plays out.â Ibid. Second, the residual clause obligated courts to compare that risk to an indeterminate standardâone that was inextricably linked to the provisionâs four enumerated crimes, which presented differing kinds and degrees of risk. Id ., at ___, 135 S. Ct. 2551 , 2559 , 192 L. Ed. 2d 569 , 580 ). This murky confluence of features, each of which âmay [have been] tolerable in isolation,â together âma[de] a task for us which at best could be only guesswork.â Id ., at ___, 135 S. Ct. 2551 , 2560 , 192 L. Ed. 2d 569 , 581 .
Section 16(b) does not present the same ambiguities. The two provisions do correspond to some extent. Under our decisions, both ask the sentencing court to consider whether a particular offense, defined without regard to the facts of the conviction, poses a specified risk. And, relevant to both statutes, we have explained [*1236] that in deciding whether statutory elements inherently produce a risk, a court must take into account how those elements will ordinarily be fulfilled. See James v. United States, 550 U. S. 192 , 208 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 (2007) (this categorical inquiry asks âwhether the conduct encompassed by the elements of the offense, in the ordinary case, presentsâ the requisite risk). 1 In the Courtâs view, that effectively resolves this case. But the Court too readily dismisses the significant textual distinctions between §16(b) and the ACCA residual clause. See also ante, at 2 (opinion of Gorsuch, [***29] J.). Those differences undermine the conclusion that §16(b) shares each of the âdual flawsâ of that clause. Ante, at 21 (majority opinion).
To begin, §16(b) yields far less uncertainty âabout how to estimate the risk posed by a crime.â Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 2554 , 192 L. Ed. 2d 569 , 575 . There are three material differences between §16(b) and the ACCA residual clause in this respect. First, the ACCA clause directed the reader to consider whether the offenderâs conduct presented a âpotential riskâ of injury. Forced to give meaning to that befuddling choice of phraseâwhich layered one indeterminate term on top of anotherâwe understood the word âpotentialâ to signify that âCongress intended to encompass possibilities even more contingent or remote than âa simple ârisk.ââ James, 550 U. S., at 207-208 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . As we explained in Johnson, that made for a âspeculativeâ inquiry âdetached from statutory elements.â 576 U. S., at ___ , 135 S. Ct. 2551 , 2558 , 192 L. Ed. 2d 569 , 579 . In other words, the offense elements could not constrain the risk inquiry in the manner they do here. See Leocal, 543 U. S., at 11 , 125 S. Ct. 377 , [**584] 160 L. Ed. 2d 271 . The âserious potential riskâ standard also forced courts to assess in an expansive way the âcollateral consequencesâ of the perpetratorâs acts. For example, courts had to take into account the concern that others might cause injury in attempting to apprehend the offender. See Sykes v. United States, 564 U. S. 1 , 8-9 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 (2011). Section 16(b) , on the other hand, asks about âriskâ alone, a familiar concept of everyday life. It therefore calls for a commonsense inquiry that does not compel a court to venture beyond the offense elements to consider contingent and remote possibilities.
Second, §16(b) focuses exclusively on the risk that the offender will âuse[ ]â âphysical forceâ âagainstâ another person or another personâs property. Thus, unlike the ACCA residual clause, â§16(b) plainly does not encompass all offenses which create a âsubstantial riskâ that injury will result from a personâs conduct.â Leocal, 543 U. S., at 10 , n. 7, 125 S. Ct. 377 , 160 L. Ed. 2d 271 (emphasis added). The point is not that an inquiry into the risk of âphysical forceâ is markedly more determinate than an inquiry into the risk of âphysical injury.â But see ante, at 19-20. The difference [*1237] is that §16(b) asks about the risk that the offender himself will actively employ force against person or property. That language does not sweep in all instances in which the offenderâs acts, or another personâs reaction, might result in unintended or negligent harm.
Third, §16(b) has a temporal limit that the ACCA residual clause lacked: The âsubstantial riskâ of force must arise âin the course of committing the offense.â Properly interpreted, this means the statute requires a substantial risk that the perpetrator will use force while carrying out the crime. See Leocal, 543 U. S., at 10 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 (âThe reckless disregard in §16 relates . . . to the risk that the use of physical force against another might be required in committing a crime.â). The provision thereby excludes more attenuated harms that might arise following the completion of the crime. The ACCA residual clause, by contrast, contained no similar language restricting its scope. And the absence of such a limit, coupled with the reference [***30] to âpotentialâ risks, gave courts free rein to classify an offense as a violent felony based on injuries that might occur after the offense was over and done. See, e.g., United States v. Benton, 639 F. 3d 723 , 732 (CA6 2011) (finding that âsolicitation to commit aggravated assaultâ qualified under the ACCA residual clause on the theory that the solicited individual might subsequently carry out the requested act).
Why does any of this matter? Because it mattered in Johnson. More precisely, the expansive language in the ACCA residual clause contributed to our determination that the clause gave rise to âgrave uncertainty about how to estimate the risk posed by a crime.â 576 U. S., at ___ , 135 S. Ct. 2551 , 2557 , 192 L. Ed. 2d 569 , 578 . âCritically,â we saidâa word that tends to mean somethingââpicturing the criminalâs behavior is not enough.â Ibid. (emphasis added). Instead, measuring âpotential riskâ âseemingly require[d] the judge to imagine how the idealized ordinary case of the crime subsequently plays out.â Ibid. (emphasis added). Not so here. In applying [**585] §16(b) , considering âthe criminalâs behaviorâ is enough.
Those three distinctionsâthe unadorned reference to ârisk,â the focus on the offenderâs own active employment of force, and the âin the course of committingâ limitationâalso mean that many hard cases under ACCA are easier under §16(b) . Take the firearm possession crime from Johnson itself, which had as its constituent elements (1) unlawfully (2) possessing (3) a short-barreled shotgun. None of those elements, âby its nature,â carries âa substantial riskâ that the possessor will use force against another âin the course of committing the offense.â Nothing inherent in the act of firearm possession, even when it is unlawful, gives rise to a substantial risk that the owner will then shoot someone. See United States v. Serafin, 562 F. 3d 1105 , 1113 (CA10 2009) (recognizing that âLeocal instructs [a court] to focus not on whether possession will likely result in violence, but instead whether one possessing an unregistered weapon necessarily risks the need to employ force to commit possessionâ). 2 Yet short-barreled shotgun [*1238] possession presented a closer question under the ACCA residual clause, because the âserious potential riskâ language seemingly directed us to consider âthe circumstances and conduct that ordinarily attend the offense,â in addition to the offense itself. Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 2583 , 192 L. Ed. 2d 569 , 606 (Alito, J., dissenting) ; see id ., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 19-20) (reasoning that the crime must qualify because âa person who chooses to break the law and risk the heavy criminal penalty incurred by possessing a notoriously dangerous weapon is [likely] to use that weapon in violent waysâ).
Failure to report to a penal institution, the subject of Chambers v. United States, 555 U. S. 122 , 129 S. Ct. 687 , 172 L. Ed. 2d 484 (2009), is another crime âwhose treatment becomes more obvious under §16(b) than under ACCA,â ante, at 18. In Chambers, the Government argued that the requisite risk of injury arises not necessarily at the time the offender fails to report to prison, but instead later, when an officer attempts to recapture the fugitive. 555 U. S. , at 128 , 129 S. Ct. 687 , 172 L. Ed. 2d 484 . The majority is correct that we ultimately âreject[ed]â the Governmentâs [***31] contention. Ante, at 18. But we did so after âassum[ing] for argumentâs sakeâ its premiseâthat is, âthe relevance of violence that may occur long after an offender fails to report.â 555 U. S., at 128 , 129 S. Ct. 687 , 172 L. Ed. 2d 484 ; see id., at 129 [**586] , 129 S. Ct. 687 , 172 L. Ed. 2d 484 (looking at 160 cases of âfailure to reportâ and observing that ânone at all involved violence . . . during the commission of the offense itself, [nor] during the offenderâs later apprehensionâ). The âin the course of committing the offenseâ language in §16(b) helpfully forecloses that debate.
DUI offenses are yet another example. Because §16(b) asks about the risk that the offender will âuse[ ]â âphysical force,â we readily concluded in Leocal that the subsection does not cover offenses where the danger arises from the offenderâs negligent or accidental conduct, including drunk driving. 543 U. S., at 11 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 . Applying the ACCA residual clause proved more trying. When asked to decide whether the clause covered drunk driving offenses, a majority of the Court concluded that the answer was no. Begay v. United States, 553 U. S. 137 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 (2008). Our decision was based, however, on the inference that the clause must cover only âpurposeful, âviolent,â and âaggressiveâ conductââa test derived not from the âconduct that presents a serious potential risk of physical injuryâ language, but instead by reference to (what we guessed to be) the unifying characteristics of the enumerated offenses. Id., at 144-145 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 . Four Members of the Court criticized that test, see id., at 150-153 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 (Scalia, J., concurring in judgment); id., at 158-160 , 162-163 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 (Alito, J., dissenting), though they themselves disagreed about whether DUIs were covered, see id., at 153-154 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 (opinion of Scalia, J.); id., at 156-158 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 (opinion of Alito, J.). And the Court distanced itself from the Begay requirement only a few years later when confronting the crime of [*1239] vehicular flight. See Sykes, 564 U. S., at 12-13 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 ; Johnson, 576 U. S., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 8-9).
Which brings me to the second part of the Courtâs analysis: its objection that §16(b) , like the ACCA residual clause, leaves âuncertainty about the level of risk that makes a crime âviolent.ââ Ante, at 10. The âsubstantial riskâ standard in §16(b) is significantly less confusing because it is not tied to a disjointed list of paradigm offenses. Recall that the ACCA provision defined a âviolent felonyâ to include a crime that âis burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.â 18 U. S. C. §924(e)(2)(B)(ii) (emphasis added). As our Court recognized early on, that âotherwiseâ told the reader to understand the âserious potential risk of physical injuryâ standard by way of the four enumerated crimes. James, 550 U. S., at 203 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . But how, exactly? That question dogged our residual clause cases for years, until we said no mĂÂĄs in Johnson.
In our first foray, James, we resolved the case by asking whether the risk posed by the crime of attempted burglary was âcomparable to that posed by its closest analog among the enumerated offenses,â which was completed burglary. 550 U. S., at 203 , [**587] 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . While that rule â[took] care of attempted burglary,â it âoffer[ed] no help at all with respect to the vast majority of offenses, which have [***32] no apparent analog among the enumerated crimes.â Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 2558 , 192 L. Ed. 2d 569 , 579 . The James dissent, for its part, would have determined the requisite degree of risk from the least dangerous of the enumerated crimes, and compared the offense to that. 550 U. S. , at 218-219 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 (opinion of Scalia, J.). But that approach also proved to be harder than it sounded. See id., at 219-227 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 .
After James came Begay, in which we concluded that the enumerated offenses served as an independent limitation on the kind of crime that could qualify. 553 U. S., at 142 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 ; see Chambers, 555 U. S., at 128 , 129 S. Ct. 687 , 172 L. Ed. 2d 48 (applying the Begay standard). As discussed, that test was short lived (though we did not purport to wholly repudiate it). See Sykes, 564 U. S., at 13 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 . Finally, in Sykesâour penultimate residual clause caseâwe acknowledged the prior use of the closest-analog test in James, but instead focused on whether the risk posed by vehicular flight was âsimilar in degree of dangerâ to the listed offenses of arson and burglary. 564 U. S., at 8-10 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 . As a result, Justice Scaliaâs dissent characterized the Sykes majority as applying the test from his prior dissent in James, not James itself. See 564 U. S., at 29-30 , 33 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 . This series of precedents laid bare our ârepeated inability to craft a principled test out of the statutory text,â id., at 34 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 (opinion of Scalia, J.), as the Court ultimately acknowledged in Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 7).
The enumerated offenses, and our Courtâs failed attempts to make sense of them, were essential to Johnsonâs conclusion that the residual clause âleaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.â Id ., at ___, 135 S. Ct. 2551 , 2558 , 192 L. Ed. 2d 569 , 579 ). As Johnson explained, the issue was not that the statute employed a fuzzy standard. That kind of thing appears in the statute books all the time. Id ., at ___, ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 6, 12). In the majorityâs retelling today, the difficulty inhered solely in the fact that the statute paired such a standard with the ordinary case inquiry. See ante, at 8, 10-11, 21. But that [*1240] account sidesteps much of Johnsonâs reasoning. See 576 U. S. , at ___-___, ___, ___-___, ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 4-5, 6, 7-9, 12). Our opinion emphasized that the word âotherwiseâ âforce[d]â courts to interpret the amorphous standard âin light ofâ the four enumerated crimes, which are ânot much more similar to one another in kind than in degree of risk posed.â Id ., at ___, ___, 135 S. Ct. 2551 , 2559 , 192 L. Ed. 2d 569 , 580 . Or, as Johnson put it more vividly, â[t]he phrase âshades of red,â standing alone, does not generate confusion or unpredictability; but the phrase âfire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of redâ assuredly does so.â Id ., at ___, 135 S. Ct. 2551 , 2561 , 192 L. Ed. 2d 569 , 582 . Indeed, the author of Johnson had [**588] previously, and repeatedly, described this feature of the residual clause as the âcrucial . . . respectâ in which the law was problematic. See James, 550 U. S., at 230 , n. 7, 127 S. Ct. 1586 , 167 L. Ed. 2d 532 (opinion of Scalia, J.); Sykes, 564 U. S., at 35 , 131 S. Ct. 2267 , 180 L. Ed. 2d 60 (opinion of Scalia, J.).
With §16(b) , by contrast, a court need simply consider the meaning of the word âsubstantialââa word our Court has interpreted and applied innumerable times across a wide variety of contexts. 3 The court does not need to give that familiar word content by reference [***33] to four different offenses with varying amounts and kinds of risk.
In its effort to recast a considerable portion of Johnson as dicta, the majority speculates that if the enumerated offenses had truly mattered to the outcome, the Court would have told lower courts to âgive up on trying to interpret the clause by reference toâ those offenses, rather than striking down the provision entirely. Ante, at 21. No litigant in Johnson suggested that solution, which is not surprising. Such judicial redrafting could have expanded the reach of the criminal provisionâsurely a job for Congress alone.
In any event, I doubt the majorityâs proposal would have done the trick. And that is because the result in Johnson did not follow from the presence of one frustrating textual feature or another. Quite the opposite: The decision emphasized that it was the âsumâ of the âuncertaintiesâ in the ACCA residual clause, confirmed by years of experience, that âconvince[d]â us the provision was beyond salvage. Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 10). Those failings do not characterize the provision at issue here.
III
The more constrained inquiry required under §16(b) âwhich asks only whether the offense elements naturally carry with them a risk that the offender will use force [*1241] in committing the offenseâdoes not itself engender âgrave uncertainty about how to estimate the risk posed by a crime.â And the provisionâs use of a commonplace substantial risk standardâone not tied to a list of crimes that lack a unifying featureâdoes not give rise to intolerable âuncertainty about how much risk it takes for a crime to qualify.â That should be enough to reject Dimayaâs facial vagueness challenge. 4
Because I would rely on those distinctions [**589] to uphold §16(b) , the Court reproaches me for not giving sufficient weight to a âcore insightâ of Johnson. Ante, at 10, n. 4; see ante, at 15 (opinion of Gorsuch, J.) (arguing that §16(b) runs afoul of Johnson âto the extent [§16(b) ] requires an âordinary caseâ analysisâ). But the fact that the ACCA residual clause required the ordinary case approach was not itself sufficient to doom the law. We instead took pains to clarify that our opinion should not be read to impart such an absolute rule. See Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 10). I would adhere to that careful holding and not reflexively extend the decision to a different statute whose reach is, on the whole, far more clear.
The Court does the opposite, and the ramifications of that decision are significant. First, of course, todayâs holding invalidates a provision of the Immigration and Nationality Actâpart of the definition of âaggravated felonyââon which the Government relies to âensure that dangerous criminal aliens are removed from the United States.â Brief for United States 54. Contrary to the Courtâs back-of-the-envelope assessment, see ante, at 23, n. 12, the Government explains that the definition is âcriticalâ for ânumerousâ immigration provisions. Brief for United States 12.
In addition, §16 serves as the universal definition of âcrime of violenceâ for all of Title 18 of the United States Code. Its language is incorporated [***34] into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. See 18 U. S. C. §§25(a)(1) , 842(p)(2) , 1952(a) , 1956(c)(7)(B)(ii) , 1959(a)(4) , 2261(a) , 3561(b) . Of special concern, §16 is replicated in the definition of âcrime of violenceâ applicable to §924(c) , which prohibits using or carrying a firearm âduring and in relation to any crime of violence,â or possessing a firearm âin furtherance of any such crime.â §§924(c)(1)(A) , (c)(3) . Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Courtâs holding calls into question convictions under what the Government warns us is an âoft-prosecuted offense.â Brief for United States 12.
Because Johnson does not compel todayâs result, I respectfully dissent.
[*1242] Justice Thomas, with whom Justice Kennedy and Justice Alito join as to Parts I-C-2, II-A-1, and II-B, dissenting.
I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b) , as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to [**590] invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (2015). ACCAâs residual clauseâa provision that this Court had applied four times before Johnsonâwas not unconstitutionally vague either. See id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (Thomas, J., concurring in judgment) ( slip op., at 1); id ., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (Alito, J., dissenting) ( slip op., at 13-17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the ââsumââ of its specific features.Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (majority opinion) ( slip op., at 10). By ignoring this limitation, the Court jettisons Johnsonâs assurance that its holding would not jeopardize âdozens of federal and state criminal laws.â Id ., at ___, 135 S. Ct. 2551 , 2561 , 192 L. Ed. 2d 569 , 582 ).
While The Chief Justice persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id ., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) (slip op., at 7-18). Second, if the Court thinks that §16(b) is unconstitutionally vague because of the âcategorical approach,â see ante, at 6-11, then the Court should abandon that approachânot insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.
I
I continue to harbor doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clauseâand those doubts are only amplified in the removal context. I am also skeptical that the vagueness doctrine can be justified as a way to prevent delegations of core legislative power in this context. But I need not resolve these questions because, if the vagueness doctrine has any basis in the Due Process Clause, it must be limited to cases in which the statute is unconstitutionally [***35] vague as applied to the person challenging it. That is not the case for respondent, whose prior convictions for first-degree residential burglary in California fall comfortably within the scope of §16(b) .
A
The Fifth Amendmentâs Due Process Clause provides that no person shall be âdeprived of life, liberty, or property, without due process of law.â Section 16(b) , as incorpo-rated by the INA, cannot violate this Clause unless the following propositions are true: The Due Process Clause requires federal statutes to provide certain minimal procedures, the vagueness doctrine is one of those procedures, and the vagueness doctrine applies to statutes governing the removal of aliens. Although I need not resolve any of these propositions today, each one is questionable. I will address them in turn.
1
First, the vagueness doctrine is not legitimate unless the âlaw of the landâ view of due process is incorrect. Under that view, due process ârequire[s] only that our Government . . . proceed . . . according to written constitutional and statutory provision[s] [*1243] before depriving [**591] someone of life, liberty, or property.â Nelson v. Colorado, 581 U. S. ___ , ___, n. 1, 137 S. Ct. 1249 , 197 L. Ed. 2d 611 (2017) (Thomas, J., dissenting) (slip op., at 2, n. 1) (internal quotation marks omitted). More than a half century after the founding, the Court rejected this view of due process in Murrayâs Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 , 18 How. 272 , 15 L. Ed. 372 (1856). See id., at 276 , 15 L. Ed. 372 (holding that the Due Process Clause âis a restraint on the legislative as well as on the executive and judicial powers of the governmentâ). But the textual and historical support for the law-of-the-land view is not insubstantial. 1
2
Even under Murrayâs Lessee, the vagueness doctrine is legitimate only if it is a âsettled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.â Id ., at 277, 15 L. Ed. 372 . That proposition is dubious. Until the end of the 19th century, âthere is little indication that anyone . . . believed that courts had the power under the Due Process Claus[e] to nullify statutes on [vagueness] ground[s].â Johnson, supra , at ___, 135 S. Ct. 2551 , 2569 , 192 L. Ed. 2d 569 , 591 (opinion of Thomas, J.) That is not because Americans were unfamiliar with vague laws. Rather, early American courts, like their English predecessors, addressed vague laws through statutory construction instead of constitutional law. See Note, Void for Vagueness: An Escape From Statutory Interpretation, 23 Ind. L. J. 272, 274-279 (1948). They invoked the rule of lenity and declined to apply vague penal statutes on a case-by-case basis. See Johnson, 576 U. S., at ___ -___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) (slip op., at 7-10); e.g., ante, at 5-6, and n. 1 (Gorsuch, J., concurring in part and concurring in judgment) (collecting cases). 2 The modern vagueness doctrine, which claims the judicial authority to âstrike downâ [**592] vague legislation on its face, did not emerge until the turn of the 20th century. See [*1244] Johnson, 576 U. S., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) (slip op., at 11-13).
The difference between the traditional rule of lenity and the modern vagueness doctrine is not merely semantic. Most obviously, lenity is a tool of statutory construction, which means States can [***36] abrogate itâand many have. Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748 , 752-754 (1935); see also Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581 , 583 (1989) (âArizona, by the way, seems to have preserved a fair and free society without adopting the rule that criminal statutes are to be strictly construedâ (citing Ariz. Rev. Stat. §1-211C (1989))). The vagueness doctrine, by contrast, is a rule of constitutional law that States cannot alter or abolish. Lenity, moreover, applies only to âpenalâ statutes, 1 Blackstone, Commentaries on the Laws of England 88 (1765), but the vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal, Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) ( slip op., at 6); see also Note, Indefinite Criteria of Definiteness in Statutes, 45 Harv. L. Rev. 160 , 163 (1931) (explaining that the modern vagueness doctrine was not merely an âextension of the rule of strict construction of penal statutesâ because it âexpressly include[s] civil statutes within its scope,â reflecting a âregrettable disregardâ for legislatures). 3 In short, early American courts were not applying the modern vagueness doctrine by another name. They were engaged in a fundamentally different enterprise.
Tellingly, the modern vagueness doctrine emerged at a time when this Court was actively interpreting the Due Process Clause to strike down democratically enacted lawsâfirst in the name of the âliberty of contract,â then in the name of the âright to privacy.â See Johnson, 576 U. S., at ___-___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) ( slip op., at 13-16). That the vagueness doctrine âdevelop[ed] on the federal level concurrently with the growth of the tool of substantive due processâ does not seem like a coincidence. Note, 23 Ind. L. J., at 278. Like substantive due process, the vagueness doctrine provides courts with âopen-ended authority to oversee [legislative] choices.â Kolender v. Lawson, 461 U. S. 352 , 374 , 103 S. Ct. 1855 , 75 L. Ed. 2d 903 (1983) (White, J., dissenting). This Court, for example, has used the vagueness doctrine to invalidate antiloitering laws, even though those laws predate the Declaration of Independence. See Johnson, supra , at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) (slip op., at 7) (discussing Chicago v. Morales, 527 U. S. 41 , 119 S. Ct. 1849 , 144 L. Ed. 2d 67 (1999)).
This Court also has a bad habit of invoking the Due Process Clause to constitutionalize rules that were traditionally left to the democratic process. [**593] See, e.g., Williams v. Pennsylvania, 579 U. S. ___ , 136 S. Ct. 1899 , 195 L. Ed. 2d 132 (2016); BMW of North America, Inc. v. Gore, 517 U. S. 559 , 116 S. Ct. 1589 , 134 L. Ed. 2d 809 (1996); Foucha v. Louisiana, 504 U. S. 71 , 112 S. Ct. 1780 , 118 L. Ed. 2d 437 (1992); cf. Montgomery v. Louisiana, 577 U. S. ___ , 136 S. Ct. 718 , 193 L. Ed. 2d 599 (2016). If vagueness is another example of this practice, [*1245] then that is all the more reason to doubt its legitimacy.
3
Even assuming the Due Process Clause prohibits vague laws, this prohibition might not apply to laws governing the removal of aliens. Cf. Johnson, 576 U. S., at ___ , n. 7, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) (slip op., at 17, n. 7) (stressing the need for specificity when assessing alleged due process rights). The Founders were familiar with English law, where ââthe only question that ha[d] ever been made in regard to the power to expel aliens [was] whether it could be exercised by the King without the consent of Parliament.ââ Demore v. Kim, 538 U. S. 510 , 538 , 123 S. Ct. 1708 , 155 L. Ed. 2d 724 (2003) (OâConnor, J., concurring in part and concurring in judgment) [***37] (quoting Fong Yue Ting v. United States, 149 U. S. 698 , 709 , 13 S. Ct. 1016 , 37 L. Ed. 905 (1893)). And, in this country, the notion that the Due Process Clause governed the removal of aliens was not announced until the 20th century.
Less than a decade after the ratification of the Bill of Rights, the founding generation had an extensive debate about the relationship between the Constitution and federal removal statutes. In 1798, the Fifth Congress enacted the Alien Acts. One of those Acts, the Alien Friends Act, gave the President unfettered discretion to expel any aliens âhe shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof.â An Act Concerning Aliens §1, 1 Stat. 571 . This statute was modeled after the Aliens Act 1793 in England, which similarly gave the King unfettered discretion to expel aliens as he âshall think necessary for the publick Security.â 33 Geo. III, ch. 4, §18, in 39 Eng. Stat. at Large 16. Both the Fifth Congress and the States thoroughly debated the Alien Friends Act. Virginia and Kentucky enacted resolutions (anonymously drafted by Madison and Jefferson) opposing the Act, while 10 States enacted counter-resolutions condemning the views of Virginia and Kentucky. See Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Intâl L. 63, 85, 103 (2002).
The Jeffersonian Democratic-Republicans, who viewed the Alien Friends Act as a threat to their party and the institution of slavery, 4 raised a number of constitutional objections. [**594] Some of the Jeffersonians argued that the Alien Friends Act violated the Fifth Amendmentâs Due Process Clause. They complained that the Act failed to provide aliens with all the accouterments of a criminal trial. See, e.g., Kentucky Resolutions ¶6, in 4 The Debates in the Several Conventions on the Adoption of the Federal Constitution 541-542 (J. Elliot ed. 1836) (Elliotâs Debates); 8 Annals of Cong. 1982-1983 (1798) (statement of Rep. Gallatin); Madisonâs Report on the Virginia Resolutions (Jan. 7, 1800), [*1246] in 6 Writings of James Madison 361-362 (G. Hunt ed. 1906) (Madisonâs Report). 5
The Federalists gave two primary responses to this due process argument. First, the Federalists argued that the rights of aliens were governed by the law of nations, not the Constitution. See, e.g., Randolph, Debate on Virginia Resolutions, in The Virginia Report of 1799-1800, pp. 34-35 (1850) (Virginia Debates) (statement of George K. Taylor) (arguing that aliens âwere not a party to the [Constitution]â and that âcases between the government and aliens . . . arise under the law of nationsâ); id., at 100 (statement of William Cowan) (identifying the source of rights âas to citizens, the Constitution; as to aliens, the law of nationsâ); A. Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 18 (1799) (Charge to the Grand Juries) (â[T]he Constitution leaves aliens, as in other countries, to the protection of the general principles of the law of nationsâ); Answer to the Resolutions of the State of Kentucky, Oct. 29, 1799, in 4 Records of [***38] the Governor and Council of the State of Vermont 528 (1876) (denying âthat aliens had any rights among us, except what they derived from the law of nations, and rights of hospitalityâ). The law of nations imposed no enforceable limits on a nationâs power to remove aliens. See, e.g., 1 E. de Vattel, Law of Nations, §§230-231, pp. 108-109 (J. Chitty et al. transl. and ed. 1883).
Second, the Federalists responded that the expulsion of aliens âdid not touch life, liberty, or property.â Virginia Debates 34. The founding generation understood the phrase âlife, liberty, or propertyâ to refer to a relatively narrow set of core private rights that did not depend on the will of the government. See Wellness Intâl Network, Ltd. v. Sharif, 575 U. S. ___, ___-___, 135 S. Ct. 1932 , 191 L. Ed. 2d 911 (2015) (Thomas, J., dissenting) (slip op., at 9-10); Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 , 566-568 (2007) (Nelson). Quasi-private rightsââprivilegesâ or âfranchisesâ bestowed by the government on individualsâdid not qualify and could be taken away without judicial process. See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. ___ , ___, 135 S. Ct. 1293 , 191 L. Ed. 2d 222 [**595] (2015) (Thomas, J., dissenting) ( slip op., at 12); Nelson 567-569 . The Federalists argued that an alienâs right to reside in this country was one such privilege. See, e.g., Virginia Debates 34 (arguing that âordering away an alien . . . was not a matter of right, but of favour,â which did not require a jury trial); Report of the Select Committee of the House of Representatives, Made to the House of Representatives on Feb. 21, 1799, 9 Annals of Cong. 2987 (1799) (stating that aliens âremain in the country . . . merely as matter of favor and permissionâ and can be removed at any time without a criminal trial); Charge to the Grand Juries 11-13 (similar). According to the Minority Address of the Virginia Legislature (anonymously drafted by John Marshall), â[T]he right of remaining in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawnâ without judicial process. Address of the Minority in the Virginia Legislature to the People of that State 9-10 (1799) (Virginia Minority Address). Unlike âa grant of [*1247] land,â the â[a]dmission of an alien to residence . . . is revocable, like a permission.â A. Addison, Analysis of the Report of the Committee of the Virginia Assembly 23 (1800). Removing a resident alien from the country did not affect âlife, liberty, or property,â the Federalists argued, until the alien became a naturalized citizen. See id., at 23-24; Charge to the Grand Juries 11-13. That the alienâs permanent residence was conferred by statute would not have made a difference. See Nelson 571 , 580-582 ; Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U. S. ___ , ___, n. 2, 135 S. Ct. 831 , 190 L. Ed. 2d 719 (2015) (Thomas, J., dissenting) (slip op., at 9, n. 2).
After the Alien Friends Act lapsed in 1800, Congress did not enact another removal statute for nearly a century. The States enacted their own removal statutes during this period, see G. Neuman, Strangers to the Constitution 19-43 (1996), and I am aware of no decision questioning the legality of these statutes under State due-process or law-of-the-land provisions. Beginning in the late 19th century, the Federal Government [***39] reinserted itself into the regulation of immigration. When this Court was presented with constitutional challenges to Congressâ removal laws, it initially rejected them for many of the same reasons that Marshall and the Federalists had cited in defense of the Alien Friends Act. Although the Court rejected the Federalistsâ argument that resident aliens do not enjoy constitutional rights, see Wong Wing v. United States, 163 U. S. 228 , 238 , 16 S. Ct. 977 , 41 L. Ed. 140 (1896), it agreed that civil deportation statutes do not implicate âlife, liberty, or property,â see, e.g., Harisiades v. Shaughnessy, 342 U. S. 580 , 584-585 , 72 S. Ct. 512 , 96 L. Ed. 586 (1952) (â[T]hat admission for permanent residence confers a âvested rightâ on the alien [is] not founded in precedents of this Courtâ); United States ex rel. Turner v. Williams, 194 U. S. 279 , 290 , 24 S. Ct. 719 , 48 L. Ed. 979 (1904) (â[T]he deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of lawâ); Fong Yue Ting, 149 U. S., at 730 , 13 S. Ct. 1016 , 37 L. Ed. 905 (â[Deportation] is but a method of [**596] enforcing the return to his own country of an alien who has not complied with [statutory] conditions . . . . He has not, therefore, been deprived of life, liberty, or property without due process of lawâ); id., at 713-715 , 13 S. Ct. 1016 , 37 L. Ed. 905 (similar). Consistent with this understanding, âfederal immigration laws from 1891 until 1952 made no express provision for judicial review.â Demore, 538 U. S., at 538 , 123 S. Ct. 1708 , 155 L. Ed. 2d 724 (opinion of OâConnor, J.).
It was not until the 20th century that this Court held that nonpenal removal statutes could violate the Due Process Clause. See Wong Yang Sung v. McGrath, 339 U. S. 33 , 49 , 70 S. Ct. 445 , 94 L. Ed. 616 (1950). That ruling opened the door for the Court to apply the then-nascent vagueness doctrine to immigration statutes. But the Court upheld vague standards in immigration laws that it likely would not have tolerated in criminal statutes. See, e.g., Boutilier v. INS, 387 U. S. 118 , 122 , 87 S. Ct. 1563 , 18 L. Ed. 2d 661 (1967) (ââpsychopathic personalityââ); Jordan v. De George, 341 U. S. 223 , 232 , 71 S. Ct. 703 , 95 L. Ed. 886 (1951) (ââcrime involving moral turpitudeââ); cf. Mahler, supra, at 40 (ââundesirable residentsââ). Until today, this Court has never held that an immigration statute is unconstitutionally vague.
Thus, for more than a century after the founding, it was, at best, unclear whether federal removal statutes could violate the Due Process Clause. And until today, this Court had never deemed a federal removal statute void for vagueness. Given this history, it is difficult to conclude that a ban on [*1248] vague removal statutes is a âsettled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestorsâ protected by the Fifth Amendment âs Due Process Clause. Murrayâs Lessee, 18 How., at 277 , 15 L. Ed. 372 .
B
Instead of a longstanding procedure under Murrayâs Lessee, perhaps the vagueness doctrine is really a way to enforce the separation of powersâspecifically, the doctrine of nondelegation. See Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672 , 1806 (2012) (âVague statutes have the effect of delegating lawmaking authority to the executiveâ). Madison raised a similar objection to the Alien Friends Act, arguing that its expansive language effectively allowed the President to exercise legislative (and judicial) power. See Madisonâs Report 369-371. And this Courtâs precedents have [***40] occasionally described the vagueness doctrine in terms of nondelegation. See, e.g., Grayned v. City of Rockford, 408 U. S. 104 , 108-109 , 92 S. Ct. 2294 , 33 L. Ed. 2d 222 (1972) (âA vague law impermissibly delegates basic policy mattersâ). But they have not been consistent on this front. See, e.g., Aptheker v. Secretary of State, 378 U. S. 500 , 516 , 84 S. Ct. 1659 , 12 L. Ed. 2d 992 (1964) (ââThe objectionable quality of vagueness . . . does not depend upon . . . unchanneled delegation of legislative powersââ); Maynard v. Cartwright, 486 U. S. 356 , 361 , 108 S. Ct. 1853 , 100 L. Ed. 2d 372 (1988) (âObjections to vagueness under the Due Process Clause rest on the lack of noticeâ).
I agree that the Constitution prohibits Congress from delegating core legislative power to another branch. See Department of Transportation v. [**597] Association of American Railroads, 575 U. S. ___ , ___, 135 S. Ct. 1225 , 191 L. Ed. 2d 153 (2015) (AAR) (Thomas, J., concurring in judgment) (slip op., at 3) (âCongress improperly âdelegatesâ legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative powerâ); accord, Whitman v. American Trucking Assns., Inc., 531 U. S. 457 , 487 , 121 S. Ct. 903 , 149 L. Ed. 2d 1 (2001) (Thomas, J., concurring). But I locate that principle in the Vesting Clauses of Articles I, II and IIIânot in the Due Process Clause. AAR, supra , at ___-___, 135 S. Ct. 1225 , 191 L. Ed. 2d 153 (opinion of Thomas, J.) (slip op., at 2-3); see also Hampton v. Mow Sun Wong, 426 U. S. 88 , 123 , 96 S. Ct. 1895 , 48 L. Ed. 2d 495 (1976) (Rehnquist, J., dissenting) (â[T]hat there was an improper delegation of authority . . . has not previously been thought to depend upon the procedural requirements of the Due Process Clauseâ). In my view, impermissible delegations of legislative power violate this principle, not just delegations that deprive individuals of âlife, liberty, or property,â Amdt. 5.
Respondent does not argue that §16(b) , as incorporated by the INA, is an impermissible delegation of power. See Brief for Respondent 50 (stating that âthere is no delegation questionâ in this case). I would not reach that question here, because this case can be resolved on narrower grounds. See Part I-C, infra. But at first blush, it is not at all obvious that the nondelegation doctrine would justify wholesale invalidation of §16(b) .
If §16(b) delegates power in this context, it delegates power primarily to the Executive Branch entities that administer the INAânamely, the Attorney General, immigration judges, and the Board of Immigration Appeals (BIA). But Congress does not âdelegateâ when it merely authorizes the Executive Branch to exercise a power that it already has. See [*1249] AAR, supra , at ___, 135 S. Ct. 1225 , 191 L. Ed. 2d 153 (opinion of Thomas, J.) (slip op., at 3). And there is some founding-era evidence that âthe executive Power,â Art. II, §1 , includes the power to deport aliens.
Blackstoneâone of the political philosophers whose writings on executive power were âmost familiar to the Framers,â Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 231 , 253 (2001)âdescribed the power to deport aliens as executive and located it with the King. Alien friends, Blackstone explained, are âliable to be sent home whenever the king sees occasion.â 1 Commentaries on the Laws of England 252 (1765). When our Constitution was ratified, moreover, â[e]minent English judges, sitting in the Judicial Committee of the Privy Council, ha[d] gone very far in supporting the . . . expulsion, by the executive authority of a colony, [***41] of aliens.â Demore, 538 U. S., at 538 , 123 S. Ct. 1708 , 155 L. Ed. 2d 724 (opinion of OâConnor, J.) (quoting Fong Yue Ting, 149 U. S., at 709 , 13 S. Ct. 1016 , 37 L. Ed. 905 ). Some of the Federalists defending the Alien Friends Act similarly argued that the President had the power to remove aliens. See, e.g., Virginia Debates 35 (statement of George K. Taylor) (arguing that the power to remove aliens is âmost properly entrustedâ with the President, since â[h]e, by the Constitution, was bound to execute the lawsâ and is âthe executive officer, with whom all persons and bodies whatever were accustomed [**598] to communicateâ); Virginia Minority Address 9 (arguing that the removal of aliens âis a measure of general safety, in its nature political and not forensic, the execution of which is properly trusted to the department which represents the nation in all its interior relationsâ); Charge to the Grand Juries 29-30 (âAs a measure of national defence, this discretion, of expulsion or indulgence, seems properly vested in the branch of the government peculiarly charged with the direction of the executive powers, and of our foreign relations. There is in it a mixture of external policy, and of the law of nations, that justifies this dispositionâ). More recently, this Court recognized that â[r]emoval decisionsâ implicate âour customary policy of deference to the President in matters of foreign affairsâ because they touch on âour relations with foreign powers and require consideration of changing political and economic circumstances.â Jama v. Immigration and Customs Enforcement, 543 U. S. 335 , 348 , 125 S. Ct. 694 , 160 L. Ed. 2d 708 (2005) (internal quotation marks omitted). Taken together, this evidence makes it difficult to confidently conclude that the INA, through §16(b) , delegates core legislative power to the Executive.
Instead of the Executive, perhaps §16(b) impermissibly delegates power to the Judiciary, since the Courts of Appeals often review the BIAâs application of §16(b) . I assume that, at some point, a statute could be so devoid of content that a court tasked with interpreting it âwould simply be making up a lawâthat is, exercising legislative power.â Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 339 (2002); see id., at 339-340 (providing examples such as a gibberish-filled statute or a statute that requires ââgoodness and nicenessââ). But I am not confident that our modern vagueness doctrineâwhich focuses on whether regulations of individual conduct provide âfair warning,â are âclearly defined,â and do not encourage âarbitrary and discriminatory enforcement,â Grayned, 408 U. S., at 108 , 92 S. Ct. 2294 , 33 L. Ed. 2d 222 ; Kolender, 461 U. S., at 357 , 103 S. Ct. 1855 , 75 L. Ed. 2d 903 accurately demarcates the line between legislative and judicial power. The Founders understood that the interpretation of legal texts, even vague ones, remained an exercise of core judicial power. See [*1250] Perez v. Mortgage Bankers Assn., 575 U. S. ___ , ___-___, 135 S. Ct. 1199 , 191 L. Ed. 2d 186 (2015) (Thomas, J., concurring in judgment) ( slip op., at 8-9); Hamburger, The Constitutionâs Accommodation of Social Change, 88 Mich. L. Rev. 239 , 303-310 (1989). Courts were expected to clarify the meaning of such texts over time as they applied their terms to specific cases. See id., at 309-310; Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 526 (2003). Although early [***42] American courts declined to apply vague or unintelligible statutes as appropriate in individual cases, they did not wholesale invalidate them as unconstitutional delegations of legislative power. See Johnson, 576 U. S., at ___-___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , and n. 3 (opinion of Thomas, J.) (slip op., at 10-11, and n. 3).
C
1
I need not resolve these historical questions today, as this case can be decided on narrower grounds. If the vagueness doctrine has any basis in [**599] the original meaning of the Due Process Clause, it must be limited to case-by-case challenges to particular applications of a statute. That is what early American courts did when they applied the rule of lenity. Seeid ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 10). And that is how early American courts addressed constitutional challenges to statutes more generally. See ibid. (â[T]here is good evidence that [antebellum] courts . . . understood judicial review to consist âof a refusal to give a statute effect as operative law in resolving a case,â a notion quite distinct from our modern practice of â âstrik[ing] downâ legislationââ (quoting Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 756 (2010)).
2
This Courtâs precedents likewise recognize that, outside the First Amendment context, a challenger must prove that the statute is vague as applied to him. See Holder v. Humanitarian Law Project, 561 U. S. 1 , 18-19 , 130 S. Ct. 2705 , 177 L. Ed. 2d 355 (2010); United States v. Williams, 553 U. S. 285 , 304 , 128 S. Ct. 1830 , 170 L. Ed. 2d 650 (2008); Maynard, 486 U. S., at 361 , 108 S. Ct. 1853 , 100 L. Ed. 2d 372 ; Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 495 , 102 S. Ct. 1186 , 71 L. Ed. 2d 362 , and n. 7 (1982) (collecting cases). Johnson did not overrule these precedents. While Johnson weakened the principle that a facial challenge requires a statute to be vague âin all applications,â 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 11) (emphasis added), it did not address whether a statute must be vague as applied to the person challenging it. That question did not arise because the Court concluded that ACCAâs residual clause was vague as applied to the crime at issue there: unlawful possession of a short-barreled shotgun. See id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 9).
In my view, §16(b) is not vague as applied to respondent. When respondent committed his burglaries in 2007 and 2009, he was âsufficiently forewarned . . . that the statutory consequence . . . is deportation.â De George, 341 U. S., at 232 , 71 S. Ct. 703 , 95 L. Ed. 886 . At the time, courts had âunanimous[ly]â concluded that residential burglary is a crime of violence, and not âa single opinion . . . ha[d] held that [it] is not.â United States v. M. C. E., 232 F. 3d 1252 , 1255-1256 (CA9 2000); see also United States v. Davis, 881 F. 2d 973 , 976 (CA11 1989) (explaining that treating residential burglary as a crime of violence was â[i]n accord with common law tradition and the settled law of the federal circuitsâ). Residential burglary âha[d] been considered a violent offense for hundreds of years . . . because of the potential for mayhem if burglar encounters resident.â United States v. Pinto, 875 F. 2d 143 , 144 (CA7 1989). The Model Penal [*1251] Code had recognized that risk, see ALI, Model Penal Code §221.1, Comment 3(c), p. 75 (1980); the Sentencing Commission had recognized that risk; see United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006); and this Court had repeatedly recognized that risk, see, e.g., James v. United States, 550 U. S. 192 , 203 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 (2007); Taylor v. United States, 495 U. S. 575 , 588 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 (1990). In Leocal v. Ashcroft, 543 U. S. 1 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 (2004), this Court [***43] unanimously agreed that burglary is the âclassic exampleâ of a crime of violence under [**600] §16(b) , because it âinvolves a substantial risk that the burglar will use force against a victim in completing the crime.â Id., at 10 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 .
That same risk is present with respect to respondentâs statute of convictionâfirst-degree residential burglary, Cal. Penal Code Ann. §§459 , 460(a) (West 1999). The California Supreme Court has explained that the Stateâs burglary laws recognize âthe dangers to personal safety created by the usual burglary situation.â People v. Davis, 18 Cal. 4th 712 , 721 , 76 Cal. Rptr. 2d 770 , 958 P. 2d 1083 , 1089 (1998) (emphasis added). ââ[T]he fact that a building is used as a home . . . increases such danger,ââ which is why California elevates residential burglary to a first-degree offense. People v. Rodriguez, 122 Cal. App. 4th 121 , 133 , 18 Cal. Rptr. 3d 550 , 558 (2004); see also People v. Wilson, 208 Cal. App. 3d 611 , 615 , 256 Cal. Rptr. 422 , 425 (1989) (â[T]he higher degree . . . is intended to prevent those situations which are most dangerous, most likely to cause personal injuryâ (emphasis deleted)). Although unlawful entry is not an element of the offense, courts âunanimous[ly]â agree that the offense still involves a substantial risk of physical force. United States v. Avila, 770 F. 3d 1100 , 1106 (CA4 2014); accord, United States v. Maldonado, 696 F. 3d 1095 , 1102 , 1104 (CA10 2012); United States v. Scanlan, 667 F. 3d 896 , 900 (CA7 2012); United States v. Echeverria-Gomez, 627 F. 3d 971 , 976 (CA5 2010); United States v. Becker, 919 F. 2d 568 , 573 (CA9 1990). First-degree residential burglary requires entry into an inhabited dwelling, with the intent to commit a felony, against the will of the homeownerâthe key elements that create the risk of violence. See United States v. Park, 649 F. 3d 1175 , 1178-1180 (CA9 2011); Avila, supra, at 1106-1107 ; Becker, supra, at 571 , n. 5. As this Court has explained, â[t]he main risk of burglary arises not from the simple physical act of wrongfully entering onto anotherâs property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.â James, supra, at 203 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 .
Drawing on Johnson and the decision below, the Court suggests that residential burglary might not be a crime of violence because ââonly about seven percent of burglaries actually involve violence.ââ Ante, at 9, n. 3 (citing Dimaya v. Lynch, 803 F. 3d 1110 , 1116 , n. 7 (CA9 2015)); see Bureau of Justice Statistics, S. Catalano, National Crime Victimization Survey: Victimization During Household Burglary 1 (Sept. 2010), https://www.bjs.gov/content/pub/ pdf/vdhb.pdf (as last visited Apr. 13, 2018). But this statisticâwhich measures actual violence against a member of the household, see id., at 1, 12, 125 S. Ct. 377 , 160 L. Ed. 2d 271 is woefully underinclusive. It excludes other potential victims besides household membersâfor example, âa police officer, or a bystande[r] who comes to investigate,â James, supra, at 203 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . And §16(b) requires only a risk of physical force, not actual physical force, and that risk would seem to be present whenever someone is home during the burglary. Further, Johnson is not conclusive because, unlike [*1252] ACCAâs residual clause, §16(b) covers offenses that involve a substantial risk of physical force âagainst the person or property of another.â (Emphasis added.) Surely the ordinary case of [**601] residential burglary involves at least one of these risks. According to the statistics referenced by the Court, most burglaries involve either [***44] a forcible entry (e.g., breaking a window or slashing a door screen), an attempted forcible entry, or an unlawful entry when someone is home. See Bureau of Justice Statistics, supra, at 2 (Table 1). Thus, under any metric, respondentâs convictions for first-degree residential burglary are crimes of violence under §16(b) .
3
Finally, if facial vagueness challenges are ever appropriate, I adhere to my view that a law is not facially vague ââ[i]f any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law.ââ Morales, 527 U. S., at 112 , 119 S. Ct. 1849 , 144 L. Ed. 2d 67 (Thomas, J., dissenting) (quoting Kolender, 461 U. S., at 370-371 , 103 S. Ct. 1855 , 75 L. Ed. 2d 903 (White, J., dissenting)). The residual clause of ACCA had such a core. See Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 ( slip op., at 10); id ., at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (Alito, J., dissenting) ( slip op., at 14-15). And §16(b) has an even wider core, as THE CHIEF JUSTICE explains. Thus, the Court should not have invalidated §16(b) , either on its face or as applied to respondent.
II
Even taking the vagueness doctrine and Johnson at face value, I disagree with the Courtâs decision to invalidate §16(b) . The sole reason that the Court deems §16(b) unconstitutionally vague is because it reads the statute as incorporating the categorical approachâspecifically, the âordinary caseâ approach from ACCAâs residual clause. Although the Court mentions â[t]wo featuresâ of §16(b) that make it vagueâthe ordinary-case approach and an imprecise risk standardâthe Court admits that the second feature is problematic only in combination with the first. Ante, at 8. Without the ordinary-case approach, the Court âdo[es] not doubtâ the constitutionality of §16(b) . Ante, at 10.
But if the categorical approach renders §16(b) unconstitutionally vague, then constitutional avoidance requires us to make a reasonable effort to avoid that interpretation. And a reasonable alternative interpretation is available: Instead of asking whether the ordinary case of an alienâs offense presents a substantial risk of physical force, courts should ask whether the alienâs actual underlying conduct presents a substantial risk of physical force. I will briefly discuss the origins of the categorical approach and then explain why the Court should abandon it for §16(b) .
A
1
The categorical approach originated with Justice Blackmunâs opinion for the Court in Taylor v. United States, 495 U. S. 575 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 (1990). The question in Taylor was whether ACCAâs reference to âburglaryâ meant burglary as defined by state law or burglary in the generic sense. After âdevoting 10 pages of [its] opinion to legislative history,â id., at 603 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 (Scalia, J., concurring in part and concurring in [**602] judgment), and finding that Congress had made âan inadvertent casualty in [the] complex drafting process,â id., at 589-590 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 (majority opinion), the Court concluded that ACCA referred to burglary in the generic sense, id., at 598 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 . The Court then addressed how the Government would prove that a [*1253] defendant was convicted of generic burglary, as opposed to another offense. Id., at 599-602 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 . Taylor rejected the notion that the Government could introduce evidence [***45] about the âparticular factsâ of the defendantâs underlying crime. Id., at 600 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 . Instead, the Court adopted a âcategorical approach,â which focused primarily on the âstatutory definition of the prior offense.â Id., at 602 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 .
Although Taylor was interpreting one of ACCAâs enumerated offenses, this Court later extended the categorical approach to ACCAâs residual clause. See James, 550 U. S., at 208 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . That extension required some reworking. Because ACCAâs enumerated-offenses clause asks whether a prior conviction âis burglary, arson, or extortion,â 18 U. S. C. §924(e)(2)(B)(ii) , Taylor instructed courts to focus on the definition of the underlying crime. The residual clause, by contrast, asks whether a prior conviction âinvolves conduct that presents a serious potential risk of physical injury to another.â §924(e)(2)(B) (ii). Thus, the Court held that the categorical approach for the residual clause asks âwhether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.â James, supra, at 208 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 (emphasis added). This âordinary caseâ approach allowed courts to apply the residual clause without inquiring into the individual facts of the defendantâs prior crime.
Taylor gave a few reasons why the categorical approach was the correct reading of ACCA, see 495 U. S., at 600-601 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 , but the âheart of the decisionâ was the Courtâs concern with limiting the amount of evidence that the parties could introduce at sentencing. Shepard v. United States, 544 U. S. 13 , 23 , 125 S. Ct. 1254 , 161 L. Ed. 2d 205 (2005). Specifically, the Court was worried about potential violations of the Sixth Amendment. If the parties could introduce evidence about the defendantâs underlying conduct, then sentencing proceedings might devolve into a full-blown minitrial, with factfinding by the judge instead of the jury. See id., at 24-26 , 125 S. Ct. 1254 , 161 L. Ed. 2d 205 ; Taylor, supra, at 601 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 . While this Courtâs decision in Almendarez-Torres v. United States, 523 U. S. 224 , 118 S. Ct. 1219 , 140 L. Ed. 2d 350 (1998), allows judges to find facts about a defendantâs prior convictions, a full-blown minitrial would look âtoo much likeâ the kind of factfinding that the Sixth Amendment requires the jury to conduct. Shepard, 544 U. S., at 25 , 125 S. Ct. 1254 , 161 L. Ed. 2d 205 . By construing ACCA to require a categorical approach, then, the Court was following â[t]he rule of reading statutes to avoid serious risks of unconstitutionality.â Ibid.
2
I disagreed with the Courtâs decision to extend the categorical approach [**603] to ACCAâs residual clause. See James, 550 U. S., at 231-232 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 (dissenting opinion). The categorical approach was an ââunnecessary exercise,ââ I explained, because it created the same Sixth Amendment problem that it tried to avoid. Id., at 231 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . Absent waiver, a defendant has the right to have a jury find âevery fact that is by law a basis for imposing or increasing punishment,â including the fact of a prior conviction. Apprendi v. New Jersey, 530 U. S. 466 , 501 , 120 S. Ct. 2348 , 147 L. Ed. 2d 435 (2000) (Thomas, J., concurring). The exception recognized in Almendarez-Torres for prior convictions is an aberration, has been seriously undermined by subsequent precedents, and should be reconsidered. See Mathis v. United States, 579 U. S. ___ , ___, 136 S. Ct. 2243 , 195 L. Ed. 2d 604 (2016) (Thomas, J., concurring) (slip op., at 1); [*1254] Shepard, supra, at 27-28, 125 S. Ct. 1254 , 161 L. Ed. 2d 205 (Thomas, J., concurring [***46] in part and concurring in judgment). In my view, if the Government wants to enhance a defendantâs sentence based on his prior convictions, it must put those convictions in the indictment and prove them to a jury beyond a reasonable doubt. 6
B
My objection aside, the ordinary-case approach soon created problems of its own. The Courtâs attempt to avoid the Scylla of the Sixth Amendment steered it straight into the Charybdis of the Fifth. The ordinary-case approach that was created to honor the individual right to a jury is now, according to the Court, so vague that it deprives individuals of due process.
I see no good reason for the Court to persist in reading the ordinary-case approach into §16(b) . The text of §16(b) does not mandate the ordinary-case approach, the concerns that led this Court to adopt it do not apply here, and there are no prudential reasons for retaining it. In my view, we should abandon the categorical approach for §16(b) .
1
The text of §16(b) does not require a categorical approach. The INA declares an alien deportable if he is âconvicted of an aggravated felonyâ after he is admitted to the United States. 8 U. S. C. §1227(a)(2)(A)(iii) . Aggravated felonies include âcrime[s] of violenceâ as defined in §16 . §1101(a)(43)(F) . Section 16 , in turn, defines crimes of violence as follows:
â(a)an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
â(b)any other offense that is a felony and that, by its nature, involves a substantial
risk that physical [**604] force against the person or property of another may be used in the course of committing
the offense.â
At first glance, §16(b) is not clear about the precise question it poses. On the one hand, the statute might refer to the metaphysical ânatureâ of the offense and ask whether it ordinarily involves a substantial risk of physical force. On the other hand, the statute might refer to the underlying facts of the offense that the offender committed; the words âby its nature,â âsubstantial risk,â and âmayâ would mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense. The text can bear either interpretation. See Nijhawan v. Holder, 557 U. S. 29 , 33-34 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 (2009) (â[I]n ordinary speech words such as âcrime,â âfelony,â âoffense,â and the like sometimes refer to a generic crime . . . and sometimes refer to the specific acts in which an offender engaged on a specific occasionâ). It is entirely natural to use words like ânatureâ and âoffenseâ to refer to an offenderâs actual underlying conduct. 7
[*1255] Although both interpretations are linguistically possible, several factors indicate that the underlying-conduct approach is the better one. To begin, §16(b) asks whether an offense âinvolvesâ a substantial risk of force. The word âinvolvesâ suggests that the offense must necessarily include a substantial risk of force. See The New Oxford Dictionary of English 962 (2001) (âinclude (something) as a necessary part or resultâ); Random House Dictionary of the English Language 1005 (2d ed. 1987) (â1. to include as a necessary circumstance, condition, or consequenceâ); [***47] Oxford American Dictionary 349 (1980) (â1. to contain within itself, to make necessary as a condition or resultâ). That [**605] condition is always satisfied if the Government must prove that the alienâs underlying conduct involves a substantial risk of force, but it is not always satisfied if the Government need only prove that the âordinary caseâ involves such a risk. See Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (Alito, J., dissenting) (slip op., at 12). Tellingly, the other aggravated felonies in the INA that use the word âinvolvesâ employ the underlying-conduct approach. See 8 U. S. C. §1101(a)(43)(M)(i) (âan offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000â); §1101(h)(3) (âany crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to anotherâ). As do the similarly worded provisions of the Comprehensive Crime Control Act of 1984, the bill that contained §16(b) . See, e.g., 98 Stat. 2059 (elevating the burden of proof for the release of âa person found not guilty only by reason of insanity of an offense involving bodily injury to, or serious damage to the property of, another person, or involving a substantial risk of such injury or damageâ); id., at 2068 (establishing the sentence for drug offenses âinvolvingâ specific quantities and types of drugs); id., at 2137 (defining violent crimes in aid of racketeering to include âattempting or conspiring to [*1256] commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injuryâ).
A comparison of §16(b) and §16(a) further highlights why the former likely adopts an underlying-conduct approach. Section 16(a) covers offenses that have the use, attempted use, or threatened use of physical force âas an element.â Because §16(b) covers âotherâ offenses and is separated from §16(a) by the disjunctive word âor,â the natural inference is that §16(b) asks a different question. In other words, §16(b) must require immigration judges to look beyond the elements of an offense to determine whether it involves a substantial risk of physical force. But if the elements are insufficient, where else should immigration judges look to determine the riskiness of an offense? Two options are possible, only one of which is workable.
The first option is to consult the underlying facts of the alienâs crime and then assess its riskiness. This approach would provide a definitive answer in every case. And courts are already familiar with this kind of inquiry. Cf. Johnson, supra , at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 12) (noting that âdozensâ of similarly worded laws ask courts to assess âthe riskiness of conduct in which an individual defendant engages on a particular occasionâ). Nothing suggests that Congress imposed a more limited inquiry when it enacted §16(b) in 1984. At the time, Congress had not yet enacted ACCAâs residual clause, this Court had not yet created the categorical approach, and this Court had not yet recognized a Sixth Amendment limit on judicial factfinding at sentencing, see Chambers v. United States, 555 U. S. 122 , 132 , 129 S. Ct. 687 , 172 L. Ed. 2d 484 (2009) (Alito, J., concurring in judgment).
The second option is to [***48] imagine the âordinary caseâ of the alienâs crime and then assess the riskiness of that hypothetical offense. But the phrase âordinary caseâ does not appear in the statute. And imagining the ordinary [**606] case, the Court reminds us, is âhopeless[ly] indetermina[te],â âwholly âspeculative,ââ and mere âguesswork.â Ante, at 7, 24 (quoting Johnson, supra , at ___-___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 5, 7)); see also Chambers, supra, at 133 , 129 S. Ct. 687 , 172 L. Ed. 2d 484 (opinion of Alito, J.) (observing that the categorical approach is ânearly impossible to apply consistentlyâ). Because courts disfavor interpretations that make a statute impossible to apply, see A. Scalia & B. Garner, Reading Law 63 (2012), this Court should reject the ordinary-case approach for §16(b) and adopt the underlying-facts approach instead. See Johnson, supra , at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (Alito, J., dissenting) (slip op., at 10) (âWhen another interpretation is ready at hand, why should we assume that Congress gave the clause a meaning that is impossibleâor even, exceedingly difficultâto applyâ).
2
That the categorical approach is not the better reading of §16(b) should not be surprising, since the categorical approach was never really about the best reading of the text. As explained, this Court adopted that approach to avoid a potential Sixth Amendment problem with sentencing judges conducting minitrials to determine a defendantâs past conduct. But even assuming the categorical approach solved this Sixth Amendment problem in criminal cases, no such problem arises in immigration cases. â[T]he provisions of the Constitution securing the right of trial by jury have no applicationâ in a removal proceeding. Turner, 194 U. S., at 290 , 24 S. Ct. 719 , 48 L. Ed. 979 . And, in criminal cases, the underlying-conduct approach would be perfectly constitutional if the Government included the defendantâs prior conduct in the indictment, [*1257] tried it to a jury, and proved it beyond a reasonable doubt. See Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (Alito, J., dissenting) (slip op., at 12). Nothing in §16(b) prohibits the Government from proceeding this way, so the plurality is wrong to suggest that the underlying-conduct approach would necessarily âping-pong us from one constitutional issue to another.â Ante, at 14.
If constitutional avoidance applies here at all, it requires us to reject the categorical approach for §16(b) . According to the Court, the categorical approach is unconstitutionally vague. And, all agree that the underlying-conduct approach would not be. See Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (majority opinion) (slip op., at 12) (â[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as âsubstantial riskâ to real-world conductâ). Thus, if the underlying-conduct approach is a âreasonabl[e]â interpretation of §16(b) , it is our âplain dutyâ to adopt it. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366 , 407 , 29 S. Ct. 527 , 53 L. Ed. 836 (1909). And it is reasonable, as explained above.
In Johnson, the Court declined to adopt the underlying-conduct approach for ACCAâs residual clause. See 576 U. S., at ___-___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 12-13). The Court concluded that the categorical approach was the only reasonable reading of ACCA because the residual clause uses the word âconvictions.â [***49] Id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 13). The Court also stressed [**607] the âutter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction.â Ibid .
Neither of these arguments is persuasive with respect to the INA. Moreover, this Court has already rejected them. In Nijhawan, this Court unanimously concluded that one of the aggravated felonies in the INAââan offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,â §1101(a)(43)(M) (i)âapplies the underlying-conduct approach, not the categorical approach. 557 U. S., at 32 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 . Although the INA also refers to âconvict[ions],â §1227(a)(2)(A) (iii), the Court was not swayed by that argument. The word âconvict[ion]â means only that the defendantâs underlying conduct must ââbe tied to the specific counts covered by the conviction,ââ not âacquitted or dismissed counts or general conduct.â Id., at 42 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 . As for the supposed practical problems with proving an alienâs prior conduct, the Court did not find that argument persuasive either. â[T]he âsole purposeâ of the âaggravated felonyâ inquiry,â the Court explained, ââis to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself.ââ Ibid. And because the INA places the burden on the Government to prove an alienâs conduct by clear and convincing evidence, §1229a(c)(3)(A) , âuncertainties caused by the passage of time are likely to count in the alienâs favor,â id., at 42 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 .
There are additional reasons why the practical problems identified in Johnson should not matter for §16(b) âeven assuming they should have mattered for ACCAâs residual clause, see Lewis v. Chicago, 560 U. S. 205 , 217 , 130 S. Ct. 2191 , 176 L. Ed. 2d 967 (2010) (â[I]t is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enactedâ). In a removal proceeding, any difficulties with identifying an alienâs past conduct will fall on immigration judges, not federal courts. But those judges are already accustomed to finding facts about the conduct underlying an alienâs prior convictions, since some of [*1258] the INAâs aggravated felonies employ the underlying-conduct approach. The BIA has instructed immigration judges to determine such conduct based on âany evidence admissible in removal proceedings,â not just the elements of the offense or the record of conviction. See Matter of Babaisakov, 24 I. & N. Dec. 306 , 307 (2007). No one has submitted any evidence that the BIAâs approach has been âutter[ly] impracticab[le]â or âdaunting[ly] difficul[t]â in practice. Ante, at 15. And even if it were, âhow much time the agency wants to devote to the resolution of particular issues is . . . a question for the agency itself.â Ali v. Mukasey, 521 F. 3d 737 , 741 (CA7 2008). Hypothetical burdens on the BIA should not influence how this Court interprets §16(b) .
In short, we should not blithely assume that the reasons why this Court adopted the categorical approach for ACCAâs residual clause also apply to the INAâs list of aggravated felonies. As Nijhawan explained, âthe âaggravated felonyâ statute, unlike ACCA, contains some [**608] language that refers to generic [***50] crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed.â 557 U. S., at 38 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 . âThe questionâ in each case is âto which category [the aggravated felony] belongs.â Ibid. As I have explained, §16(b) belongs in the underlying-conduct category. Because that is the better reading of §16(b) âs textâor at least a reasonable readingâthe Court should have adopted it here.
3
I see no prudential reason for maintaining the categorical approach for §16(b) . The Court notes that the Government âexplicitly acknowledgesâ that §16(b) employs the categorical approach. Ante, at 9. But we cannot permit the Governmentâs concessions to dictate how we interpret a statute, much less cause us to invalidate a statute enacted by a coordinate branch. See United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439 , 446-447 , 113 S. Ct. 2173 , 124 L. Ed. 2d 402 (1993); Young v. United States, 315 U. S. 257 , 258-259 , 62 S. Ct. 510 , 86 L. Ed. 832 (1942). This Courtâs âtraditional practiceâ is to ârefus[e] to decide constitutional questionsâ when other grounds of decision are available, âwhether or not they have been properly raised before us by the parties.â Neese v. Southern R. Co., 350 U. S. 77 , 78 , 76 S. Ct. 131 , 100 L. Ed. 60 (1955) (per curiam); see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1948-1949 (1997) (explaining that courts commonly âdecide an antecedent statutory issue, even one waived by the parties, if its resolution could preclude a constitutional claimâ). This Court has raised potential saving constructions âon our own motionâ when they could avoid a ruling on constitutional vagueness grounds, even in cases where the Government was a party. United States v. L. Cohen Grocery Co., 255 U. S. 81 , 88 , 41 S. Ct. 298 , 65 L. Ed. 516 (1921). We should have followed that established practice here.
Nor should stare decisis prevent us from rejecting the categorical approach for §16(b) . This Court has never held that §16(b) incorporates the ordinary-case approach. Although Leocal held that §16(b) incorporates a version of the categorical approach, the Court must not feel bound by that decision, as it largely overrules it today. See ante, at 22, n. 7. Surely the Court cannot credibly invoke stare decisis to defend the categorical approachâthe same approach it says only a âlunaticâ would continue to apply. Ante, at 24. If the Court views the categorical approach that wayâthe same way Johnson viewed itâthen it must also agree that â[s]tanding by [the categorical approach] [*1259] would undermine, rather than promote, the goals that stare decisis is meant to serve.â 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (slip op., at 15). That is especially true if the Courtâs decision leads to the invalidation of scores of similarly worded state and federal statutes, which seems even more likely after today than it did after Johnson. Instead of adhering to an interpretation that it thinks unconstitutional and then using that interpretation to strike down another statute, the Court should have taken this opportunity to abandon the categorical approach for §16(b) once and for all.
[**609] ***
The Courtâs decision today is triply flawed. It unnecessarily extends our incorrect decision in Johnson. It uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling [***51] into question countless more). And it does all this in the name of a statutory interpretation that we should have discarded long ago. Because I cannot follow the Court down any of these rabbit holes, I respectfully dissent.
fn |
1 The analysis thus differs from the form of categorical approach used to determine whether a prior conviction is for a particular listed offense (say, murder or arson). In that context, courts ask what the elements of a given crime always requireâin effect, what is legally necessary for a conviction. See, e.g., Descamps v. United States, 570 U. S. 254 , 260-261 , 133 S. Ct. 2276 , 186 L. Ed. 2d 438 (2013); Moncrieffe v. Holder, 569 U. S. 184 , 190-191 , 133 S. Ct. 1678 , 185 L. Ed. 2d 727 (2013). |
fn |
2 Compare Shuti v. Lynch, 828 F. 3d 440 (CA6 2016) (finding §16(b) unconstitutionally vague); United States v. Vivas-Ceja, 808 F. 3d 719 (CA7 2015) (same), with United States v. Gonzalez-Longoria, 831 F. 3d 670 (CA5 2016) (en banc) (upholding §16(b) ). |
fn |
3 Johnson also anticipated and rejected a significant aspect of Justice Thomasâs dissent in this case. According to Justice Thomas, a court may not invalidate a statute for vagueness if it is clear in any of its applicationsâas he thinks is true of completed burglary, which is the offense Dimaya committed. See post, at 16-20. But as an initial matter, Johnson explained that supposedly easy applications of the residual clause might not be âso easy after all.â 576 U. S., at ___-___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 582 . The crime of completed burglary at issue here illustrates that point forcefully. See id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 579 (asking whether âan ordinary burglar invade[s] an occupied home by night or an unoccupied home by dayâ); Dimaya v. Lynch, 803 F. 3d 1110 , 1116 , n. 7 (CA9 2015) (noting that only about seven percent of burglaries actually involve violence); Cal. Penal Code Ann. §§459 ,460 (West 2010) (sweeping so broadly as to cover even dishonest door-to-door salesmen). And still more fundamentally, Johnson made clear that our decisions âsquarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provisionâs grasp.â 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 582 . |
fn |
4 THE CHIEF JUSTICEâs dissent makes light of the difficulty of identifying a crimeâs ordinary case. In a single footnote, THE CHIEF JUSTICE portrays that task as no big deal: Just eliminate the âatypicalâ cases, and (presto!) the crimeâs nature and risk are revealed. See post, at 5, n. 1. That rosy viewâat complete odds with Johnsonâunderlies his whole dissent (and especially, his analysis of how §16(b) applies to particular offenses, see post, at 7-10). In effect, THE CHIEF JUSTICE is able to conclude that §16(b) can survive Johnson only by refusing to acknowledge one of the two core insights of that decision. |
fn |
5 For example, in United States v. Hayes, 555 U. S. 415 , 129 S. Ct. 1079 , 172 L. Ed. 2d 816 (2009), this Court held that a firearms statute referring to former crimes as âcommitted byâ specified persons requires courts to consider underlying facts. Id., at 421 , 129 S. Ct. 1079 , 172 L. Ed. 2d 816 . And in Nijhawan v. Holder, 557 U. S. 29 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 (2009), the Court similarly adopted a non-categorical interpretation of one of the aggravated felonies listed in the INA because of the phrase, appended to the named offense, âin which the loss to the victim or victims exceeds $10,000.â Id., at 34 , 36 , 129 S. Ct. 2294 , 174 L. Ed. 2d 22 (emphasis deleted). Justice Thomas suggests that Nijhawan rejected the relevance of our ACCA precedents in interpreting the INAâs aggravated-felony listâincluding its incorporation of §16(b) . Post, at 29-30. But that misreads the decision. In Nijhawan, we considered an item on the INAâs list that looks nothing like ACCA, and we concludedâno surprise hereâthat our ACCA decisions did not offer a useful guide. As to items on the INAâs list that do mirror ACCA, the opposite conclusion of course follows. |
fn |
6 In response to repeated questioning at two oral arguments, the Government proposed one (and only one) such crimeâbut we disagree that §16(b) âs temporal language would aid in its analysis. According to the Government, possession of a short-barreled shotgun could count as violent under ACCA but not under §16(b) because shooting the gun is ânot in the course of committing the crime of possession.â Tr. of Oral Arg. 59-60 (Oct. 2, 2017); see Tr. of Oral Arg. 6-7 (Jan. 17, 2017); Brief for Petitioner 32-34. That is just wrong: When a criminal shoots a gun, he does so while (âin the course of â) possessing it (except perhaps in some physics-defying fantasy world). What makes the offense difficult to classify as violent is something different: that while some people use the short-barreled shotguns they possess to commit murder, others merely store them in a nearby firearms cabinetâand it is hard to settle which is the more likely scenario. Compare Johnson, 576 U. S., at ___-___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 607 (Alito, J., dissenting) (âIt is fanciful to assume that a person who [unlawfully possesses] a notoriously dangerous weapon is unlikely to use that weapon in violent waysâ), with id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 577 (Thomas, J., concurring) (Unlawful possession of a short-barreled shotgun âtakes place in a variety of ways . . . many, perhaps most, of which do not involve likely accompanying violenceâ (internal quotation marks omitted)). But contrary to THE CHIEF JUSTICEâs suggestion, see post, at 7-8 (which, again, is tied to his disregard of the ordinary-case inquiry, see supra, at 10, n. 4), that issue must be settled no less under §16(b) than under ACCA. |
fn |
7 And, THE CHIEF JUSTICE emphasizes, we decided that one unanimously! See post, at 3 (discussing Leocal v. Ashcroft, 543 U. S. 1 , 125 S. Ct. 377 , 160 L. Ed. 2d 271 (2004)). But one simple application does not a clear statute make. As we put the point in Johnson: Our decisions âsquarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provisionâs grasp.â 576 U. S., at ___ , 135 S. Ct. 2551 , 192 L. Ed. 2d 569 , 582 ; see supra, at 9, n. 4. |
fn |
8 Compare Escudero-Arciniega v. Holder, 702 F. 3d 781 , 784-785 (CA5 2012) (per curiam) (yes, it does), and United States v. Guzman-Landeros, 207 F. 3d 1034 , 1035 (CA8 2000) (per curiam) (same), with Sareang Ye v. INS, 214 F. 3d 1128 , 1133-1134 (CA9 2000) (no, it does not). |
fn |
9 Compare Aguiar v. Gonzales, 438 F. 3d 86 , 89-90 (CA1 2006) (statutory rape involves a substantial risk of force); Chery v. Ashcroft, 347 F. 3d 404 , 408-409 (CA2 2003) (same); and United States v. Velazquez-Overa, 100 F. 3d 418 , 422 (CA5 1996) (same), with Valencia v. Gonzales, 439 F. 3d 1046 , 1052 (CA9 2006) (statutory rape does not involve such a risk). |
fn |
10 Compare Dixon v. Attorney Gen., 768 F. 3d 1339 , 1343-1346 (CA11 2014) (holding that one such statute falls under §16(b) ), with Flores-Lopez v. Holder, 685 F. 3d 857 , 863-865 (CA9 2012) (holding that another does not). |
fn |
11 Compare United States v. Venegas-Ornelas, 348 F. 3d 1273 , 1277-1278 (CA10 2003) (residential trespass is a crime of violence), with Zivkovic v. Holder, 724 F. 3d 894 , 906 (CA7 2013) (it is not). |
fn |
12 From all we can tellâand all the Government has told us, see Brief for Petitioner 45-52âlower courts have also decided many fewer cases involving §16(b) than ACCAâs residual clause. That disparity likely reflects the Governmentâs lesser need to rely on §16(b) . That provision is mainly employed (as here) in the immigration context, to establish an âaggravated felonyâ requiring deportation. See supra, at 2. But immigration law offers many other ways to achieve that result. The INA lists 80 or so crimes that count as aggravated felonies; only if a conviction is not for one of those specified offenses need the Government resort to §16(b) (or another catch-all provision). See Luna Torres v. Lynch, 578 U. S. ___ , ___, 136 S. Ct. 1619 , 194 L. Ed. 2d 737 , 739 (2016)). By contrast, ACCA enumerates only four crimes as a basis for enhancing sentences; the Government therefore had reason to use the statuteâs residual clause more often. |
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13 See, e.g., Armendariz-Moreno v. United States, 555 U. S. 1133 , 129 S. Ct. 993 , 173 L. Ed. 2d 288 (2009) (vacating and remanding for reconsideration in light of Begay v. United States, 553 U. S. 137 , 128 S. Ct. 1581 , 170 L. Ed. 2d 490 (2008), and Chambers v. United States, 555 U. S. 122 , 129 S. Ct. 687 , 172 L. Ed. 2d 484 (2009)); Castillo-Lucio v. United States, 555 U. S. 1133 , 129 S. Ct. 993 , 173 L. Ed. 2d 288 (2009) (same); Addo v. Mukasey, 555 U. S. 1132 , 129 S. Ct. 991 , 173 L. Ed. 2d 284 (2009) (vacating and remanding in light of Chambers); Serna-Guerra v. Holder, 556 U. S 1279 , 129 S. Ct. 2764 , 174 L. Ed. 2d 268 (2009) (same); Reyes-Figueroa v. United States, 555 U. S. 1132 , 129 S. Ct. 998 , 173 L. Ed. 2d 286 (2009) (same). |
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1 Many state courts also held vague laws ineffectual. See, e.g., State v. Mann, 2 Ore. 238 , 240-241 (1867) (holding statute that prohibited âgambling devicesâ was âvoidâ because âthe term has no settled and definite meaningâ); Drake v. Drake, 15 N. C. 110 , 115 (1833) (explaining that âif the terms in which [a statute] is couched be so vague as to convey no definite meaning to those whose duty it is to execute it . . . it is necessarily inoperativeâ); McConvill v. Mayor and Aldermen of Jersey City, 39 N. J. L. 38 , 44 (1876) (holding that an ordinance was âbad for vagueness and uncertainty in the thing forbiddenâ); State v. Boon, 1 N. C. 103 , 105 (1801) (refusing to apply a statute because âno punishment whatever can be inflicted; without using a discretion and indulging a latitude, which in criminal cases ought never to be allowed a Judgeâ); Ex parte Jackson, 45 Ark. 158 , 164 (1885) (declaring a statutory prohibition on acts âinjurious to the public moralsâ to be âvagueâ and âsimply nullâ (emphasis deleted)); McJunkins v. State, 10 Ind. 140 , 145 (1858) (âIt would therefore appear that the term public indecency has no fixed legal meaningâis vague and indefinite, and cannot in itself imply a definite offenseâ); Jennings v. State, 16 Ind. 335 , 336 (1861) (âWe are of opinion that for want of a proper definition, no act is made criminal by the terms âpublic indecency,â employed in the statuteâ); Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg. 173, 177 (Pa. 1842) (holding âthe language of [shareholder election] legislation so devoid of certaintyâ that âno valid election [could have] been held, and that none can be held without further legislationâ); Cheezem v. State, 2 Ind. 149 , 150 (1850) (finding statute to âcontai[n] no prohibition of any kind whateverâ and thus declaring it âa nullityâ); see also Note, Statutory Standards of Personal Conduct: Indefiniteness and Uncertainty as Violations of Due Process, 38 Harv. L. Rev. 963 , 964 , n. 4 (1925) (collecting cases).
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2 See, e.g., Virginia Resolutions in 4 Debates on the Federal Constitution 528 (J. Elliot ed. 1836) (explaining that the Act, âby uniting legislative and judicial powers to those of executive, subverts . . . the particular organization, and positive provisions of the federal constitutionâ); Madisonâs Report on the Virginia Resolutions (Jan. 7, 1800) in 17 Papers of James Madison 318 (D. Mattern ed. 1991) (Madisonâs Report) (contending that the Act violated âthe only preventive justice known to American jurisprudence,â because â[t]he ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate aloneâ); L. Canfield & H. Wilder, The Making of Modern America 158 (H. Anderson et al. eds. 1952) (âPeople all over the country protested against the Alien and Sedition Actsâ); M. Baseler, âAsylum for Mankindâ: America, 1607-1800, p. 287 (1998) (âThe election of 1800 was a referendum onâand a repudiation ofâthe Federalist âdoctrinesâ enunciated in the debatesâ over, among other things, the Alien Friends Act); Moore, Aliens and the Constitution, 88 N. Y. U. L. Rev. 801, 865, n. 300 (2013) (âThe Aliens Act and Sedition Act were met with widespread criticismâ); Lindsay, Immigration, Sovereignty, and the Constitution of Foreignness, 45 Conn. L. Rev. 743, 759 (2013) (â[T]he [Alien Friends] Act proved wildly unpopular among the American public, and contributed to the Republican electoral triumph in 1800 and the subsequent demise of the Federalist Partyâ). Whether the law was unenforced or, at most, enforced only once, the literature is not quite clear. Compare Sidak, War, Liberty, and Enemy Aliens, 67 N. Y. U. L. Rev. 1402, 1406 (1992) (explaining the Act was never enforced); Cole, Enemy Aliens, 54 Stan. L. Rev. 953 , 989 (2002) (same); Klein & Wittes, Preventative Detention in American Theory and Practice, 2 Harv. Natâl Sec. J. 85, 102, n. 71 (2011) (same); Rosenfeld, Deportation Proceedings and Due Process of Law, 26 Colum. Hum. Rts. L. Rev. 713, 726, 733 (1995) (same); with Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Intâl L. 63, 109 (2002) (stating that the Act was enforced once, on someone who was planning on leaving the country in a few months anyway). |
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3 This Court already and long ago held that due process requires affording aliens the âopportunity, at some time, to be heardâ before some lawful authority in advance of removalâand itâs unclear how that opportunity might be meaningful without fair notice of the lawâs demands. The Japanese Immigrant Case, 189 U. S. 86 , 101 , 23 S. Ct. 611 , 47 L. Ed. 721 (1903). Nor do the cases Justice Thomas cites hold that a statutory right to lawful permanent residency in this country can be withdrawn without due process. Post, at 11 (dissenting opinion). Rather, each merely holds that the particular statutory removal procedures under attack comported with due process. See Harisiades v. Shaughnessy, 342 U. S. 580 , 584-585 , 72 S. Ct. 512 , 96 L. Ed. 586 (1952) (rejecting argument that an âalien is entitled to constitutional [due process] protection . . . to the same extent as the citizenâ before removal (emphasis added)); United States ex rel. Turner v. Williams, 194 U. S. 279 , 289-290 , 24 S. Ct. 719 , 48 L. Ed. 979 (1904) (deporting an alien found to be in violation of a constitutionally valid law doesnât violate due process); Fong Yue Ting v. United States, 149 U. S. 698 , 730 , 13 S. Ct. 1016 , 37 L. Ed. 905 (1893) (deporting an alien who hasnât âcomplied with the conditionsâ required to stay in the country doesnât violate due process). Even when it came to judicially unenforceable privileges in the past, âexecutive officials had to respect statutory privileges that had been granted to private individuals and that Congress had not authorized the officials to abrogate.â Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 , 581 (2007) (emphasis deleted). So in a case like ours it wouldâve been incumbent on any executive official to determine that the alien committed a qualifying crime and statutory vagueness could pose a disabling problem even there. |
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1 All this âordinary caseâ caveat means is that while â[o]ne can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk,â courts should exclude those atypical cases in assessing whether the offense qualifies. James, 550 U. S., at 208 , 127 S. Ct. 1586 , 167 L. Ed. 2d 532 . As we have explained, under that approach, it is not the case that âevery conceivable factual offense covered by a statuteâ must pose the requisite risk âbefore the offense can be deemedâ a crime of violence. Ibid. But the same is true of the categorical approach generally. See ibid. (using the terms just quoted to characterize both the ordinary case approach and the categorical approach for enumerated offenses set forth in Taylor v. United States, 495 U. S. 575 , 110 S. Ct. 2143 , 109 L. Ed. 2d 607 (1990)); Moncrieffe v. Holder, 569 U. S. 184 , 191 , 133 S. Ct. 1678 , 185 L. Ed. 2d 727 (2013); Gonzales v. Duenas-Alvarez, 549 U. S. 183 , 193 , 127 S. Ct. 815 , 166 L. Ed. 2d 683 (2007). |
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2 The Court protests that this straightforward analysis fails to take account of the crimeâs ordinary case. Ante, at 18-19, n. 6. But the fact that the element of âpossessionâ may âtake[ ] place in a variety of waysââfor instance, one may possess a firearm âin a closet, in a storeroom, in a car, in a pocket,â âunloaded, disassembled, or locked away,â Johnson, 576 U. S., at ___ , 135 S. Ct. 2551 , 2565 , 192 L. Ed. 2d 569 , 587 (Thomas, J., concurring in judgment) âmatters very little. That is because none of the alternative ways of satisfying that element produce a substantial risk that the possessor will use physical force against the person or property of another. And no one would say that a person âpossessesâ a gun by firing it or threatening someone with it. Cf. id ., at ___, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) (slip op., at 5) (â[T]he risk that the Government identifies arises not from the act of possessing the weapon, but from the act of using it.â). The Courtâs insistence that this offense is nonetheless âdifficult to classifyâ under §16(b) , ante, at 18, n. 6, is surprising in light of our assessment, just two Terms ago, that §16 does not cover âfelon-in-possession laws and other firearms offenses,â Luna Torres v. Lynch, 578 U. S. ___ , ___, 136 S. Ct. 1619 , 1630 , 194 L. Ed. 2d 737 , 748 (2016) . |
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3 To name a round dozen: Ayestas v. Davis, 584 U. S. ___, ___, 138 S. Ct. 1080 , 200 L. Ed. 2d 376 (2018) (slip op., at 16); Life Technologies Corp. v. Promega Corp., 580 U. S. ___ , ___-___, 137 S. Ct. 734 , 197 L. Ed. 2d 33 (2017) (slip op., at 5-8); Virginia v. Hicks, 539 U. S. 113 , 119-120 , 122-124 , 123 S. Ct. 2191 , 156 L. Ed. 2d 148 (2003); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U. S. 184 , 196-198 , 122 S. Ct. 681 , 151 L. Ed. 2d 615 (2002); Slack v. McDaniel, 529 U. S. 473 , 483-484 , 120 S. Ct. 1595 , 146 L. Ed. 2d 542 (2000); Gentile v. State Bar of Nev., 501 U. S. 1030 , 1075-1076 , 111 S. Ct. 2720 , 115 L. Ed. 2d 888 (1991); Cage v. Louisiana, 498 U. S. 39 , 41 , 111 S. Ct. 328 , 112 L. Ed. 2d 339 (1990) (per curiam); Steadman v. SEC, 450 U. S. 91 , 98 , 101 S. Ct. 999 , 67 L. Ed. 2d 69 (1981); Palermo v. United States, 360 U. S. 343 , 351-353 , 79 S. Ct. 1217 , 3 L. Ed. 2d 1287 , 1959-2 C.B. 480 (1959); United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586 , 593-596 , 77 S. Ct. 872 , 1 L. Ed. 2d 1057 (1957); Levinson v. Spector Motor Service, 330 U. S. 649 , 670-671 , 67 S. Ct. 931 , 91 L. Ed. 1158 (1947); Consolidated Edison Co. v. NLRB, 305 U. S. 197 , 229 , 59 S. Ct. 206 , 83 L. Ed. 126 (1938). |
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4 The Court also finds it probative that âa host of issuesâ respecting §16(b) âdivideâ the lower courts. Ante, at 22. Yet the Court does little to explain how those alleged conflicts vindicate its particular concern about the provision (namely, the ordinary case inquiry). And as the Government illustrates, many of those divergent results likely can be chalked up to material differences in the state offense statutes at issue. Compare Escudero-Arciniega v. Holder, 702 F. 3d 781 , 783-785 (CA5 2012) (per curiam) (reasoning that New Mexico car burglary ârequires that the criminal lack authorization to enter the vehicleâa requirement alone which will most often ensure some force [against property] is usedâ), with Sareang Ye v. INS, 214 F. 3d 1128 , 1134 (CA9 2000) (finding it relevant that California car burglary does not require unlawful or unprivileged entry); see Reply Brief 17-20, and nn. 5-6. |
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1 See, e.g., In re Winship, 397 U. S. 358 , 382-384 , 90 S. Ct. 1068 , 25 L. Ed. 2d 368 (1970) (Black, J., dissenting); Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005 , 1041-1043 (2011); Berger, âLaw of the Landâ Reconsidered, 74 Nw. U. L. Rev. 1 , 2-17 (1979); Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366 , 368-373 (1911); see also 4 The Papers of Alexander Hamilton 35 (Syrett & Cooke eds. 1962) (âThe words âdue processâ have a precise technical import, and . . . can never be referred to an act of legislatureâ). |
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2 Before the 19th century, when virtually all felonies were punishable by death, English courts would sometimes go to extremes to find a reason to invoke the rule of lenity. See Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748 , 751 (1935); e.g., ante, at 4-7 (Gorsuch, J., concurring in part and concurring in judgment) (citing Blackstoneâs discussion of a case about âcattleâ). As the death penalty became less common, courts on this side of the Atlantic tempered the rule of lenity, clarifying that the rule requires an âambiguityâ in the text and cannot be used âto defeat the obvious intention of the legislature.â United States v. Wiltberger, 18 U.S. 76 , 5 Wheat. 76 , 5 L. Ed. 37 (1820) (Marshall, C. J.). Early American courts also declined to apply nonpenal statutes that were âunintelligible.â Johnson v. United States, 576 U. S. ___ , ___, n. 3, 135 S. Ct. 2551 , 2568 , 192 L. Ed. 2d 569 , 590 (2014) (Thomas, J., concurring in judgment) ;e.g., ante, at 5-6, and n. 1 (opinion of Gorsuch, J.) (collecting cases). Like lenity, however, this practice reflected a principle of statutory construction that was much narrower than the modern constitutional vagueness doctrine. Unintelligible statutes were considered inoperative because they were impossible to apply to individual cases, not because they were unconstitutional for failing to provide âfair notice.â See Johnson, 576 U. S., at ___ , n. 3, 135 S. Ct. 2551 , 192 L. Ed. 2d 569 (opinion of Thomas, J.) (slip op., at 10, n. 3). |
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3 This distinction between penal and nonpenal statutes would be decisive here because, traditionally, civil deportation laws were not considered penal. See Bugajewitz v. Adams, 228 U. S. 585 , 591 , 33 S. Ct. 607 , 57 L. Ed. 978 (1913); Fong Yue Ting v. United States, 149 U. S. 698 , 709 , 730 , 13 S. Ct. 1016 , 37 L. Ed. 905 (1893). Although this Court has applied a kind of strict construction to civil deportation laws, that practice did not emerge until the mid-20th century. See Fong Haw Tan v. Phelan, 333 U. S. 6 , 10 , 68 S. Ct. 374 , 92 L. Ed. 433 (1948). |
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4 The Jeffersonian Democratic-Republicans who opposed the Alien Friends Act primarily represented slave States, and their partyâs political strength came from the South. See Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Intâl L. 63, 84 (2002). The Jeffersonians opposed any federal control over immigration, which their constituents feared would be used to pre-empt State laws that prohibited the entry of free blacks. Id., at 84-85; see also Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 S. Ct. Rev. 109, 116 (âWhether pro- or anti-slavery, most southerners, including Jefferson and Madison . . . were united behind a policy of denying to the national government any competence to deal with the question of slaveryâ). The fear was that âmobile free Negroes would intermingle with slaves, encourage them to run away, and foment insurrection.â I. Berlin, Slaves Without Masters 92 (1974). |
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5 The Jeffersonians also argued that the Alien Friends Act violated due process because, if aliens disobeyed the Presidentâs orders to leave the country, they could be convicted of a crime and imprisoned without a trial. See, e.g., Kentucky Resolutions ¶6, 4 Elliotâs Debates 541. That charge was false. The Alien Friends Act gave federal courts jurisdiction over alleged violations of the Presidentâs orders. See §4, 1 Stat. 571 . |
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6 The Sixth Amendment is, thus, not a reason to maintain the categorical approach in criminal cases. Contra, ante, at 13-14 (plurality opinion). Even if it were, the Sixth Amendment does not apply in immigration cases like this one. See Part II-B-2, infra. The plurality contends that, if it must contort the text of §16(b) to avoid a Sixth Amendment problem in criminal cases, then it must also contort the text of §16(b) in immigration cases, even though the Sixth Amendment problem does not arise in the immigration context. See ante, at 13-14, 15. But, as I have explained elsewhere, this âlowest common denominatorâ approach to constitutional avoidance is both ahistorical and illogical. See Clark v. Martinez, 543 U. S. 371 , 395-401 , 125 S. Ct. 716 , 160 L. Ed. 2d 734 (2005) (dissenting opinion). |
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7 See, e.g., 18 U. S. C. §3553(a)(2) (directing sentencing judges to consider âthe nature and circumstances of the offenseâ); Schware v. Board of Bar Examiners of N. M., 353 U. S. 232 , 242-243 , 77 S. Ct. 752 , 1 L. Ed. 2d 796 (1957) (describing âthe nature of the offenseâ committed by a bar applicant as ârecruiting persons to go overseas to aid the Loyalists in the Spanish Civil Warâ); TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443 , 482 , 113 S. Ct. 2711 , 125 L. Ed. 2d 366 (1993) (OâConnor, J., dissenting) (describing âthe nature of the offense at issueâ as not âinvolving grave physical injuryâ but rather as a âbusiness dispute between two companies in the oil and gas industryâ); United States v. Broce, 488 U. S. 563 , 585-587 , 109 S. Ct. 757 , 102 L. Ed. 2d 927 (1989) (Blackmun, J., dissenting) (describing âthe nature of the charged offenseâ in terms of the specific facts alleged in the indictment); People v. Golba, 273 Mich. App. 603 , 611 , 729 N. W. 2d 916 , 922 (2007) (â[T]he underlying factual basis for a conviction governs whether the offense âby its nature constitutes a sexual offense against an individual who is less than 18 years of age.ââ (quoting Mich. Comp. Laws §28.722(e)(xi) (2006))); A Fix for Animal Abusers, Boston Herald, Nov. 22, 2017, p. 16 (âprosecutors were so horrified at the nature of his offenseâhis torture of a neighborâs dogâ); P. Ward, Attorney of Convicted Ex-Official Accuses Caseâs Judge, Pittsburgh Post-Gazette, Nov. 10, 2015, p. B1 (identifying the ânature of his offenseâ as âtaking money from an elderly, widowed client, and giving it to campaign fundsâ); Cross-Burning-Article Painted an Inaccurate Picture of Young Man in Question, Seattle Times, Aug. 12, 1991, p. A9 (â[The defendant] took no steps to prevent the cross that was burned from being constructed on his familyâs premises and later . . . assisted in concealing a second cross . . . . This was the nature of his offenseâ); N. Libman, A Parole/Probation Officer Talks With Norma Libman, Chicago Tribune, May 29, 1988, p. I31 (describing âthe nature of the offenseâ as ânot seriousâ if âthere was no definitive threat on lifeâ or if âthe dollar- and cents- amount was not greatâ); E. Walsh, District-U. S. Argument Delays Warrant for Escapeeâs Arrest, Washington Post, May 29, 1986, p. C1 (describing âthe nature of Murrayâs alleged offensesâ as âpoint[ing] at two officers a gun that was later found to contain one round of ammunitionâ). |