Sessions v. Dimaya: What Justice Gorsuch Asked at the Reargument

Update (October 2026): The Supreme Court decided Dimaya on April 17, 2018. By a 5-4 vote, it held that 18 U.S.C. § 16(b) is unconstitutionally vague. Justice Gorsuch joined the key parts of Justice Kagan's opinion and wrote separately. See Sessions v. Dimaya, 584 U.S. 148 (2018). A year later, the Court struck down the similar residual clause in 18 U.S.C. § 924(c)(3)(B). United States v. Davis, 588 U.S. 445 (2019). The post below was written on the day of the reargument.

If a § 924(c) gun conviction rested on the residual clause, a 2255 motion based on Davis generally had to be filed within one year of the decision, by June 24, 2020, under 28 U.S.C. § 2255(f)(3). A second 2255 motion also needs the court of appeals' permission under § 2255(h).

Today the Supreme Court heard argument in Sessions v. Dimaya. Few people have heard of it, but for criminal defense and immigration law, it could be a landmark case.

The question: is the "residual clause" too vague?

The question is whether 18 U.S.C. § 16(b) is unconstitutionally vague. Section 16 defines "crime of violence" for the whole U.S. Code:

The term "crime of violence" means—

(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

(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.

Section 16(a) is the "elements clause." It is not at issue. Section 16(b) is the "residual clause," a catch-all for crimes that do not fit (a).

This matters because many federal laws use the term "crime of violence" without defining it. When they do, § 16 applies, and some of those laws are criminal while others are immigration laws.

Why Johnson v. United States matters here

In 2015, Justice Scalia wrote Johnson v. United States. It struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague. That clause is worded much like § 16(b). So the argument goes: § 16(b) must fall too.

But there is a difference. Dimaya is an immigration case, which is civil, not criminal. The Supreme Court has traditionally been less strict about vagueness in civil laws. That is the government's main argument.

How Justice Gorsuch approached the reargument

Dimaya had been at the Supreme Court a long time. The Court first heard it in January 2017. The eight justices then on the Court could not resolve it by the end of the term. The original article reported they were split 4-4. Justice Gorsuch had not voted because he joined the Court after the first argument. So the Court scheduled a reargument, a real rarity, for October 2, 2017.

All eyes were on Justice Gorsuch, and he did not disappoint.

The government argued that "fair notice" matters less for civil laws. Justice Gorsuch pushed back:

JUSTICE GORSUCH: And isn't it really important in the civil context, too, when we have so many civil laws today, and they're often hidden away in places like the Federal Register and other -- other fine reads like that?

The government also argued Congress could write § 16(b) broadly. Justice Gorsuch asked:

JUSTICE GORSUCH: Really? Even when it's going to put people in prison and deprive them of liberty and result in deportation, we shouldn't expect Congress to be able to specify those who are captured by its laws?

During Dimaya's lawyer's argument, Justice Gorsuch returned to the point he had raised with the government:

JUSTICE GORSUCH: the consequences in many civil matters can be very grave, more so even than a lot of criminal penalties. Civil forfeiture, take a man's home, his entire livelihood, deport him. And I can think of lots of other examples that can be graver than misdemeanor offense on the books today.

When asked where to draw the line between civil and criminal laws for vagueness, he offered a simple test for when strict vagueness rules apply:

JUSTICE GORSUCH: What do you think about this line? Life, liberty, or property ... It's right out of the text of the Due Process Clause itself.

Our prediction at the time

Based on the tone of the argument, we said we would be surprised if Justice Gorsuch did not cast the deciding vote to strike down § 16(b). "And when that happens," we wrote, "well, the fun really begins. Stay tuned folks." That is what happened.

Read the full Dimaya oral argument transcript (PDF).

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