Justices push back over Biden admin's harsh immigration, criminal positions

"I don't think you should trivialize this case," Justice Elena Kagan told a DOJ lawyer in an immigration case on Tuesday.

On Tuesday, the Biden administration faced sharp skepticism at the U.S. Supreme Court in two cases where it was seeking harsh interpretations of federal laws — first in an immigration case and then in a criminal case.

In the immigration case, which was first, the government argued that a noncitizen’s 60-day period to voluntarily leave the country should not extend to the next business day when it falls on a weekend or holiday. This matters because failing to meet that deadline could bar a person seeking reconsideration of their deportation order from coming back into the country for 10 years — a point raised repeatedly by an increasingly frustrated Justice Neil Gorsuch and others.

At one stark moment in Hugo Velazquez’s immigration case, Justice Elena Kagan all but reprimanded Antony Yang, the assistant to the solicitor arguing the case, when he suggested that a court couldn’t review a case where a person had sought to get his removal order reconsidered because the noncitizen wanted the judge to include in the opinion that the person is a good soccer player.

“I don't think you should trivialize this case, Mr. Yang,” Kagan said, interrupting him and emphasizing her point with a finger wag from the bench.

In Salvatore Delligatti’s criminal case, meanwhile, DOJ argued that a federal penalty enhancement that applies where there was the “use, attempted use, or threatened use of physical force” in an underlying state crime should apply even where the underlying crime in question could be committed by inaction. In other words, as Justice Ketanji Brown Jackson asked of a hypothetical lifeguard who hates a certain child, “Is it your position that she uses physical force against this kid if she doesn't jump into the water when she sees him drowning?“

Eric Feigin, the deputy solicitor general arguing the second case, answered, “Yes.”

That the government lawyers faced strong pushback on their arguments in immigration and criminal law cases, particularly given the makeup of this court, is itself a strong sign of the extreme positions taken by the government in the cases.

Even Justice Clarence Thomas told Feigin that Allon Kedem’s argument for Delligatti before the justices “does have a common-sense value to it.” As Thomas put it, “[W]e normally think of force as coming from the perpetrator, not from some outside force, like gravity or some internal disease.“

In both cases, the government made arguments before the justices that had not been debated in the lower courts — a question in the immigration case about whether the courts even had jurisdiction to hear the case and a question in the criminal case about whether the underlying statute could be divisible into acts and omissions when deciding whether the penalty enhancement would apply.

When Yang was arguing that the court lacked jurisdiction to hear the immigration case, Gorsuch shot back, “If it's so obvious, how come you didn't raise it below?”

To which Yang sheepishly responded, “That I can't speak to.”

Gorsuch replied curtly, “All right. Neither can I.”

Justice Amy Coney Barrett expanded the question further, asking if “the government made this [argument] in any court” — to which Yang said this was the first time.

At that point, Justice Brett Kavanaugh asked, “In that circumstance, is the prudent thing to do to vacate and send it back so that the Tenth Circuit can consider the jurisdictional issue in the first instance?”

Despite that, and in a sign of how far the argument got away from the Justice Department, Hugo Velazquez’s lawyer, Gerard Cedrone, a Goodwin partner, noted how the government’s view has continued to change as the case has proceeded, “including at the lectern here today.”

Cerdrone then added, “I think you can even rely on Mr. Yang's words here today to recognize that there is jurisdiction,“ and then resolve the case in Velazquez’s favor because “there is nothing cutting in the other direction.”

Later, in the second argument, Gorsuch said that “maybe we go back to Justice Kavanaugh's question from the last case,” asking Feigin, “Why wouldn't we remand this to ask [the divisibility question] — we resolve that first before we start talking about lifeguards and every murder being encompassed within this?”

When Kedem got up for his rebuttal argument, he countered that this “divisibility” argument would be a new direction for the court. Normally when that comes up, he said, the underlying statute is “linguistically divisible” — the example he used was a law that said “burglary involves breaking into a house or a houseboat,” and the divisibility is between house and houseboat. Here, though, DOJ is seeking “something this Court has never done.”

As Cerdrone had done in the first case, Kedem urged the justices to resolve the case on the merits. Of a “pure omission” case where there is no action — although there might be a duty to act, and therefore, criminal liability — that “can be punished severely,” he argued, “but it does not categorically involve the use of violent physical force,” and, thus, should not be included in the federal enhancement.

In both cases, it appeared either that the Justice Department would lose or, at best, be put in the position of having to go back to the lower courts to argue positions that several justices appeared skeptical of on Tuesday.

Although these two cases are just two cases, in this moment, it is notable that the government’s positions on Tuesday — the Justice Department in the Biden administration — are not likely all that different than they would be in a Trump administration, if they would differ at all.

While there would be many cases where that is not so, and even some pending cases where the Trump administration might change positions from the Biden administration, it is worth taking time to think about the times when they would stay the same — and why those incentives for advocating harshness exist.