Sessions v. Dimaya

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 crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by 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 case of the alien’s 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 law’s 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. ___ (2015), Justice Scalia held the residual clause of the Armed Career Criminal Act void for vagueness because it invited “more unpredictability and arbitrariness” than the Constitution allows. Id. , at ___ (slip op., at 6). 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 ___–___ (opinion concurring in judgment) (slip op., at 6–18). For its part, the Court has yet to offer a reply. I believe our colleague’s challenge is a serious and thoughtful one that merits careful attention. At day’s 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 doctrine’s due process underpinnings. The Fifth and Fourteenth Amendments guarantee that “life, liberty, or property” may not be taken “without due process of law.” That means the government generally may not deprive a person of those rights without affording him the benefit of (at least) those “customary procedures to which freemen were entitled by the old law of England.”¶

Pacific Mut. Life Ins. Co. v. Haslip , 499 U. S. 1, 28 (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 government’s current laws may tolerate. Post , at 3, n. 1 (opinion of THOMAS, J.) (collecting authorities). But in my view the weight of the historical evidence shows that the clause sought to ensure that the people’s 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 the Laws of England 50 (1797). John Rutledge, our second Chief Justice, explained that Coke’s teachings were carefully studied and widely adopted by the framers, becoming ''almost the foundations of our law.'' Klopfer v. North Carolina , 386 U. S. 213, 225 (1967). And many more students of the Constitution besides—from Justice Story to Justice Scalia—have agreed that this view best represents the original understanding of our own Due Process Clause. See, e.g., Murray’s Lessee v. Hoboken Land & Improvement Co. , 18 How. 272, 277 (1856); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833); Pacific Mut. , supra, at 28–29 (opinion of Scalia, J.); Eberle, Procedural Due Process: The Original Understanding, 4 Const. Comment. 339, 341 (1987).¶

Perhaps the most basic of due process’s customary protections is the demand of fair notice. See Connally v. General Constr. Co. , 269 U. S. 385, 391 (1926); see also Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 543 (2009) (“From the inception of Western culture, fair notice has been recognized as an essential element of the rule of law”). Criminal indictments at common law had to provide “precise and sufficient certainty” about the charges involved. 4 W. Blackstone, Commentaries on the Laws of England 301 (1769) (Blackstone). Unless an “offence [was] set forth with clearness and certainty,” 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) (“[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 it”).¶

The same held true in civil cases affecting a person’s life, liberty, or property. A civil suit began by obtaining a writ—a 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 didn’t provide fair notice. Goldington v. Bassingburn , Y. B. Trin. 3 Edw. II, f. 27b (1310) (explaining that it was “the law of the land” that “no one [could] be taken by surprise” by having to “answer in court for what [one] has not been warned to answer”).¶

The requirement of fair notice applied to statutes too. Blackstone illustrated the point with a case involving a statute that made “stealing sheep, or other cattle” a felony. 1 Blackstone 88 (emphasis deleted). Because the term “cattle” 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 cover—and so the court treated the term “cattle” as a nullity. Ibid. All of which, Blackstone added, had the salutary effect of inducing the legislature to reenter the field and make itself clear by passing a new law extending the statute to “bulls, cows, oxen,” and more “by name.” Ibid.¶

This tradition of courts refusing to apply vague statutes finds parallels in early American practice as well. In The Enterprise , 8 F. Cas. 732 (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 “the court had better pass” the statutory terms by “as unintelligible and useless” rather than “put on them, at great uncertainty, a very harsh signification, and one which the legislature may never have designed.” Id., at 735. In United States v. Sharp , 27 F. Cas. 1041 (No. 16,264) (CC Pa. 1815), Justice Washington confronted a statute which prohibited seamen from making a “revolt.” Id. , at 1043. But he was unable to determine the meaning of this provision “by any authority . . . either in the common, admiralty, or civil law.” Ibid . As a result, he declined to “recommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be.” Ibid. 1¶

------¶

1 Many state courts also held vague laws ineffectual. See, e.g., State¶

“gambling devices” was “void” because “the term has no settled and¶

v.¶

Mann¶

, 2 Ore. 238, 240–241 (1867) (holding statute that prohibited¶

definite meaning”);¶

Drake v.¶

Drake¶

, 15 N. C. 110, 115 (1833) (explaining¶

convey no definite meaning to those whose duty it is to execute it . . . it¶

that “if the terms in which [a statute] is couched be so vague as to¶

is necessarily inoperative”);¶

McConvill v.¶

Mayor and Aldermen of Jersey¶

vagueness and uncertainty in the thing forbidden”);¶

City¶

, 39 N. J. L. 38, 44 (1876) (holding that an ordinance was “bad for¶

State v.¶

Boon¶

, 1¶

N. C. 103, 105 (1801) (refusing to apply a statute because “no punishment whatever can be inflicted; without using a discretion and indulging a latitude, which in criminal cases ought never to be allowed a¶

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, “all laws” “ought to be expressed in such a 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.” McConvill v. Mayor and Aldermen of Jersey City , 39 N. J. L. 38, 42 (1876). ''It 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.'' 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 ___–___ (opinion of THOMAS, J.) (slip op., at 8–10). But in substance void the law is often exactly¶

------¶

Judge”); Ex parte Jackson , 45 Ark. 158, 164 (1885) (declaring a statutory prohibition on acts “injurious to the public morals” to be “vague” and “simply null” (emphasis deleted)); McJunkins v. State , 10 Ind. 140, 145 (1858) (“It would therefore appear that the term public indecency has no fixed legal meaning—is vague and indefinite, and cannot in itself imply a definite offense”); Jennings v. State , 16 Ind. 335, 336 (1861) (“We are of opinion that for want of a proper definition, no act is made criminal by the terms ‘public indecency,’ employed in the statute”); Commonwealth v. Bank of Pennsylvania , 3 Watts & Serg. 173, 177 (Pa. 1842) (holding “the language of [shareholder election] legislation so devoid of certainty” that “no valid election [could have] been held, and that none can be held without further legislation”); Cheezem v. State , 2 Ind. 149, 150 (1850) (finding statute to “contai[n] no prohibition of any kind whatever” and thus declaring it “a nullity”); 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).¶

what these courts did: rather than try to construe or interpret 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 “cattle,” 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) (“I 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 construed”); Note, Indefinite Criteria of Definiteness in Statutes, 45 Harv. L. Rev. 160, n. 3 (1931) (explaining that “since strict construction, in effect, nullified ambiguous provisions, it was but a short step to declaring them void ab initio ”); supra, at 5, n. 1 (state courts holding vague statutory terms “void” or “null”).¶

What history suggests, the structure of the Constitution confirms. Many of the Constitution’s other provisions presuppose and depend on the existence of reasonably clear laws. Take the Fourth Amendment’s 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 Amendment’s 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 couldn’t tell what he’s 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 “parchment barrie[r]” against arbitrary power. The Federalist No. 48, p. 308 (C. Rossiter ed. 1961) (J. Madison).¶

Although today’s vagueness doctrine owes much to the guarantee of fair notice embodied in the Due Process Clause, it would be a mistake to overlook the doctrine’s equal debt to the separation of powers. The Constitution assigns “[a]ll legislative Powers” 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) (“The legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated”). Meanwhile, the Constitution assigns to judges the “judicial Power” to decide “Cases” and “Controversies.” Art. III, §2. That power does not license judges to craft new laws to govern future conduct, but only to “discer[n] the course prescribed by law” as it currently exists and to “follow it” in resolving disputes between the people over past events. Osborn v. Bank of United States , 9 Wheat. 738, 866 (1824).¶

From this division of duties, it comes clear that legislators may not “abdicate their responsibilities for setting the standards of the criminal law,” Smith v. Goguen , 415 U. S. 566, 575 (1974), by leaving to judges the power to decide “the various crimes includable in [a] vague phrase,” Jordan v. De George , 341 U. S. 223, 242 (1951) (Jackson, J., dissenting). For “if 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.” Kolender v. Lawson , 461 U. S. 352, 358, n. 7 (1983) (internal quotation marks omitted). Nor is the worry only that vague laws risk allowing judges to assume legislative power. Vague laws also threaten to transfer legislative power to police and prosecutors, leaving to them the job of shaping a vague statute’s contours through their enforcement decisions. See Grayned v. City of Rockford , 408 U. S. 104, 108–109 (1972)¶

(“A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis”).¶

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 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 “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.” Jordan , supra, at 242 (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) (“A 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 impact”). For just these reasons, Hamilton warned, while “liberty can have nothing to fear from the judiciary alone,” it has “every thing to fear from” 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 “that the more important aspect of vagueness doctrine ‘is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement'' and keep the separate branches within their proper spheres. Kolender , supra , at 358 (quoting Goguen , supra, at 575 (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 statute’s operation, we should declare the law unconstitutional only if it is “unintelligible.” But in the criminal context this Court has generally insisted that the law must afford “ordinary people . . . fair notice of the conduct it punishes.” Johnson , 576 U. S., at ___ (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 law’s demands, as we’ve seen, is “the first essential of due process.” Connally , 269 U. S., at 391. And as we’ve 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 Court’s precedents support adopting a less-thanfair-notice standard for civil cases. But even that much I do not see. This Court has already expressly held that a “stringent vagueness test” should apply to at least some civil laws—those abridging basic First Amendment freedoms. Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489, 499 (1982). This Court has made clear, too, that due process protections against vague laws are “not to be avoided by the simple label a State chooses to fasten upon its conduct or its statute.” Giaccio v. Pennsylvania , 382 U. S. 399, 402 (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 “in part on the nature of the enactment.” Hoffman Estates , 455 U. S., at¶

498. And the Court has sometimes “expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Id., at 498–499. But to acknowledge these truisms does nothing to prove that civil laws must always be subject to the government’s emaciated form of review.¶

In fact, if the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s 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. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be 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 crimesand often harsher than the punishment for felonies. And not only are “punitive civil sanctions . . . rapidly expanding,” they are “sometimes more severely punitive than the parallel criminal sanctions for the same conduct .” 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 precedent’s 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 Act—better known as the “Alien” part of the Alien and Sedition Acts—is one of the most notorious laws in our country’s history. It was understood as a temporary war measure, not one that the legislature would endorse in a time of tranquility. See, e.g., Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Int’l 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 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 aliens’ due process rights at the founding. 2¶

------¶

2 See, e.g., Virginia Resolutions in 4 Debates on the Federal Constitution 528 (J. Elliot ed. 1836) (explaining that the Act, “by uniting legislative and judicial powers to those of executive, subverts . . . the particular organization, and positive provisions of the federal constitution”); Madison’s Report on the Virginia Resolutions (Jan. 7, 1800) in 17 Papers of James Madison 318 (D. Mattern ed. 1991) (Madison’s Report) (contending that the Act violated “the only preventive justice known to American jurisprudence,” because “[t]he ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate alone”); L. Canfield & H. Wilder, The Making of Modern America 158 (H. Anderson et al. eds. 1952) (“People all over the country protested against the Alien and Sedition Acts”); M. Baseler, “Asylum for Mankind”: America, 1607–1800, p. 287 (1998) (“The election of 1800 was a referendum on—and a repudiation of—the Federalist ‘doctrines’ enunciated in the debates” over, among other things, the Alien Friends Act); Moore, Aliens and the Constitution, 88 N. Y. U. L. Rev. 801, 865, n. 300¶

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 persons—liberty that the government may then take only after affording due process. See, e.g. , Sandin v. Conner , 515 U. S. 472, 477–478 (1995); Easterbrook, Substance and Due Process, 1982 S. Ct. Rev. 85, 88 (“If . . . the constitution, statute, or regulation creates a liberty or property interest, then the second step—determining ‘what process is due’—comes into play”). Madison made this very point, suggesting an alien’s admission in this country could in some circumstances be analogous to “the grant of land to an individual,” which “may 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.” Madison’s Report 319. And, of course, that’s 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¶

------¶

(2013) (“The Aliens Act and Sedition Act were met with widespread criticism”); Lindsay, Immigration, Sovereignty, and the Constitution of Foreignness, 45 Conn. L. Rev. 743, 759 (2013) (“[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 Party”). 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. Nat’l 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. & Int’l 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).¶

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(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. Murray’s Lessee , 18 How., at 277 (approving summary procedures in another context). But however summary those procedures might be, it’s hard to fathom why fair notice of the law—the most venerable of due process’s requirements—would not be among them. Connally, 269 U. S. , at 391. 3¶

------¶

3 This Court already and long ago held that due process requires affording aliens the “opportunity, at some time, to be heard” before some lawful authority in advance of removal—and it’s unclear how that opportunity might be meaningful without fair notice of the law’s demands. The Japanese Immigrant Case , 189 U. S. 86, 101 (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 (1952) (rejecting argument that an “alien is entitled to constitutional [due process] protection . . . to the same extent as the citizen ” before removal (emphasis added)); United States ex rel. Turner v. Williams , 194 U. S. 279, 289–290 (1904) (deporting an alien found to be in violation of a constitutionally valid law doesn’t violate due process); Fong Yue Ting v. United States , 149 U. S. 698, 730 (1893) (deporting an alien who hasn’t “complied with the conditions” required to stay in the country doesn’t violate due process). Even when it came to judicially unenforceable privileges in the past, “executive officials had to respect statutory privileges that had been granted to private individuals and that Congress had not authorized the officials to abrogate.” Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 581 (2007) (emphasis deleted). So in a case like ours it would’ve 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.¶

Today, a plurality of the Court agrees that we should reject the government’s 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 family’s 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 applies to the case before us. And here at least the answer comes readily for me: to the extent it requires an “ordinary case” 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 “convicted of” a “crime of violence.” 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 “substantial risk” of “physical force” attends its commission. 18 U. S. C. §16(b); Johnson , 576 U. S., at ___–___ (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 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 aren’t any reliable statistics available? Should (or must) the judge predict 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 isn’t your everyday ambiguous statute. It leaves the people to guess about what the law demands—and 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 statute’s 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 doesn’t even ask for 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 today’s 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 ___ (slip op., at 13); Taylor v. United States , 495 U. S. 575, 600 (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 government’s 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 alien’s 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 “yield insights (or reveal pitfalls) we cannot muster guided only by our own lights.” Maslenjak v. United States , 582 U. S. ___, ___ (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 sure JUSTICE THOMAS’s is the only available alternative reading of the statute we would have to consider, even if we did reject the government’s concession and wipe the precedential slate clean. We might also have to consider an interpretation that would have courts ask not whether the alien’s crime of conviction ordinarily involves a risk of physical force, or whether the defendant’s particular crime involved such a risk, but whether the defendant’s crime of conviction always does so. After all, the language before us requires a conviction for an “offense . . . that, by its nature , involves a substantial risk of physical force.” 18 U. S. C. §16(b) (emphasis added). Plausibly, anyway, the word “nature” 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.¶

It’s important 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 “substantive component” 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.¶

Today’s 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 resident’s removal—for 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 statute’s “residual clause” where Congress ended its own list and asked us to begin writing our own. Just as Blackstone’s legislature passed a revised statute clarifying that “cattle” 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 doesn’t rise to the level of threatening death for “pretended offences” 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 of men can never tolerate that arbitrary power. And, in my judgment, that foundational principle dictates today’s 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 Court’s opinion and concur in the judgment.¶