Sessions v. Dimaya

SESSIONS, ATTORNEY GENERAL v. DIMAYA

certiorari to the united states court of appeals for

the ninth circuit No. 15–1498. Argued January 17, 2017—Reargued October 2, 2017— Decided April 17, 2018 The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” 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 “a crime of violence (as de-fined in [18 U. S. C. § 16] . . . ) for which the term of imprisonment [is] at least one year.” § 1101(a)(43)(F). Section 16's 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 “crime of violence” as “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.” 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 “the particular facts” underlying a conviction created a substantial risk, Leo-cal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208. 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 “crime of violence” 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 “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. § 924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment's Due Process Clause. Johnson v. United States, 576 U. S. 591, 597–598. 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 § 16's residual clause is unconstitutionally vague. Pp. 157–162, 166–175. (a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA's residual clause—an ordinary-case requirement and an ill-defined risk threshold— combined in the same constitutionally problematic way. To begin, ACCA's residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime's “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at 597. Compounding that uncertainty, ACCA's residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy 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” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at 598. Section 16(b) suffers from those same two flaws. Like ACCA's residual clause, § 16(b) calls for a court to identify a crime's “ordinary case” in order to measure the crime's risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Ibid. And its “substantial risk” threshold is no more determinate than ACCA's “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA's residual clause unconstitutionally vague also exist in § 16(b), with the same result. Id., at 597. Pp. 157–162. (b) The Government identifies three textual discrepancies between ACCA's 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. 166–174.

(1) First, the Government argues that § 16(b)'s express requirement (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense” serves as a “temporal restriction”—in other words, a court applying § 16(b) may not “consider risks arising after ” 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 § 16's or ACCA's residual clause, would do the same thing—ask what usually happens

when a crime is committed. The phrase “in the course of” 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 “physical force,” “trains solely” on the conduct typically involved in a crime. Brief for Petitioner 36. In contrast, ACCA's residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim's injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140. 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 ACCA's residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA's residual clause meaning. But to say that they flailed to resolve the clause's vagueness is hardly to say they caused the problem. Pp. 166–171.

(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. 171–174. 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, the Court considered what vagueness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deportation is “a particularly severe penalty,” which may be of greater concern to a convicted alien than “any potential jail sentence.” Jae Lee v. United States, 582 U. S. 357, 370. Pp. 155–157.

(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 “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact-based approach is an untenable interpretation of § 16(b). 576 U. S., at 604. 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 “the statute of conviction, not to the facts of each defendant's conduct.” Taylor v. United States, 495 U. S. 575, 601. And the words “by its nature” 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 “reconstruct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach's “utter impracticability”—and associated inequities—is as great in § 16(b) as in ACCA. Johnson, 576 U. S., at 605. Pp. 162–166. Justice Gorsuch, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identi-fed in Johnson v. United States, 576 U. S. 591, 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 operation is unavailing. In the criminal context, the law generally must afford “ordinary people fair notice of the conduct it punishes,” id., at 595, 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. 175–192. Kagan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V , in which Gins-burg , Breyer , Sotomayor , and Gorsuch, JJ., joined, and an opinion with

respect to Parts II and IV–A, in which Ginsburg , Breyer , and Soto-mayor , JJ., joined. Gorsuch, J., filed an opinion concurring in part and concurring in the judgment, post, p. 175. Roberts, C. J., filed a dissenting opinion, in which Kennedy , Thomas, and Alito , JJ., joined, post, p. 192. 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, post, p. 205.

Deputy Solicitor General Kneedler argued and reargued the cause for petitioner. With him on the briefs were Acting Solicitor General Gershengorn, Principal Deputy Assistant Attorney General Mizer , John F . Bash, Donald E. Keener, and Bryan S. Beier .

E . Joshua Rosenkranz argued and reargued the cause for respondent. With him on the brief were Thomas M. Bondy , Brian P . Goldman, Naomi J . Mower , and Andrew Knapp .*

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 law's definition of “violent felony” was impermissibly vague. See 576 U. S. 591 (2015). The question in this case is whether a similarly worded clause in a statute's definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

The INA defines “aggravated felony” by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes. § 1101(a)(43); see Luna Torres v. Lynch, 578 U. S. 452, 455 (2016). According to one item on that long list, an aggravated felony includes “a crime of violence (as defined in section 16 of title 18 . . . ) for which the term of imprisonment [is] at least one year.” § 1101(a) (43)(F). The specified statute, 18 U. S. C. § 16, provides the federal criminal code's definition of “crime of violence.” Its two parts, often known as the elements clause and the residual clause, cover:

“(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(b), the residual clause, is the part of the statute at issue in this case.

To decide whether a person's conviction “falls within the ambit” of that clause, courts use a distinctive form of what we have called the categorical approach. Leocal v. Ashcroft, 543 U. S. 1, 7 (2004). The question, we have explained, is not whether “the particular facts” underlying a conviction

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 “crime of violence” under § 16(b). “[B]y its nature,” the Board reasoned, the offense “carries a substantial risk of the use of force.” 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 “violent felony” in the Armed Career Criminal Act (ACCA), 18 U. S. C. § 924(e). ACCA prescribes a 15-year mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has

“any crime punishable by imprisonment for a term exceeding one year . . . that—

“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. ” § 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 statute's residual clause. In Johnson v. United States, the Court declared that clause “void for vagueness” under the Fifth Amendment's Due Process Clause. 576 U. S., at 597–598.

Relying on Johnson, the Ninth Circuit held that § 16(b), as incorporated into the INA, was also unconstitutionally vague, and accordingly ruled in Dimaya's favor. See Di-maya v. Lynch, 803 F. 3d 1110, 1120 (2015). Two other Circuits reached the same conclusion, but a third distinguished ACCA's residual clause from § 16's. 2 We granted certiorari to resolve the conflict. Lynch v. Dimaya, 579 U. S. 969 (2016).

“The prohibition of vagueness in criminal statutes,” our decision in Johnson explained, is an “essential” of due process, required by both “ordinary notions of fair play and the settled rules of law.” 576 U. S., at 595 (quoting Connally v. General Constr. Co., 269 U. S. 385, 391 (1926)). The void-

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 “[t]he degree of vagueness that the Constitution [allows] depends in part on the nature of the enactment”: In particular, the Court has “expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” Hoff-man Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498–499 (1982). The removal of an alien is a civil matter. See Arizona v. United States, 567 U. S. 387, 396 (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 Court's 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

Nothing in the ensuing years calls that reasoning into question. To the contrary, this Court has reiterated that deportation is “a particularly severe penalty,” which may be of greater concern to a convicted alien than “any potential jail sentence.” Jae Lee v. United States, 582 U. S. 357, 370 (2017) (quoting Padilla v. Kentucky , 559 U. S. 356, 365, 368 (2010)). And we have observed that as federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more “intimately related to the criminal process.” Chaidez v. United States, 568 U. S. 342, 352 (2013) (quoting Padilla, 559 U. S., at 365). 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 § 16's 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's analysis.

Johnson is a straightforward decision, with equally straightforward application here. Its principal section begins as follows: “Two features of [ACCA's] residual clause

“In the first place,” Johnson explained, ACCA's residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a hypothesis about the crime's “ordinary case.” Id., at 597. Under the clause, a court focused on neither the “real-world facts” nor the bare “statutory elements” of an offense. Ibid. Instead, a court was supposed to “imagine” an “idealized ordinary case of the crime”—or otherwise put, the court had to identify the “kind of conduct the `ordinary case' of a crime involves.” Ibid. But how, John-son asked, should a court figure that out? By using a “statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” Ibid. (internal quotation marks omitted). ACCA provided no guidance, rendering judicial accounts of the “ordinary case” wholly “speculative.” Ibid. Johnson gave as its prime example the crime of attempted burglary. One judge, contemplating the “ordinary case,” would imagine the “violent encounter” apt to ensue when a “would-be burglar [was] spotted by a police officer [or] private security guard.” Ibid. Another judge would conclude that “any confrontation” was more “likely to consist of [an observer's] yelling `Who's there?' . . . and the burglar's running away.” Ibid. But how could either judge really know? “The residual clause,” Johnson summarized, “offer[ed] no reliable way” to discern what the ordinary version of any offense looked like. Id., at 598. And without that, no one could tell how much risk the offense generally posed.

“[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as `substantial risk' to real-world conduct; the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree[.] The residual clause, however, requires application of the `serious potential risk' 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.” Id., at 603–604 (some internal quotation marks, citations, and alterations omitted).

So much less predictability, in fact, that ACCA's residual clause could not pass constitutional muster. As the Court again put the point, in the punch line of its decision: “By 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 clause” violates the guarantee of due process. Id., at 598.3

pleted burglary at issue here illustrates that point forcefully. See id., at 598 (asking whether an “ordinary burglar invade[s] an occupied home by night or an unoccupied home by day”); 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 “squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp.” 576 U. S., at 602.

And § 16(b) also possesses the second fatal feature of ACCA's residual clause: uncertainty about the level of risk that makes a crime “violent.” In ACCA, that threshold was “serious potential risk”; in § 16(b), it is “substantial risk.” See supra, at 153, 155. But the Government does not argue that the latter formulation is any more determinate than the former, and for good reason. As The Chief Justice's valiant attempt to do so shows, that would be slicing the baloney mighty thin. See post, at 196–198 (dissenting opinion). And indeed, Johnson as much as equated the two phrases: Return to the block quote above, and note how Johnson—as though anticipating this case—refers to them interchangeably, as alike examples of imprecise “qualitative standard[s].” See supra, at 159; 576 U. S., at 604. Once again, the point is not that such a non-numeric standard is alone problematic: In Johnson's words, “we do not doubt” the constitutionality of applying § 16(b)'s “substantial risk [standard] to real-world conduct.” Id., at 603–604 (internal quotation marks omitted). The difficulty comes, in § 16's residual clause just as in ACCA's, from applying such a standard to “a judge-imagined abstraction”—i. e., “an idealized ordinary case of the crime.” Id., at 598, 604. It is then that the standard ceases to work in a way consistent with due process.

In sum, § 16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA's residual clause] unconstitutionally

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) “impossible to apply.” Post, at 230. 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 defendant's particular conduct. In contrast, the Government, joined by The Chief Justice , accepts that § 16(b), as long interpreted, demands a categorical approach, rather than a case-specific one. They argue only that “distinctive textual features” of § 16's residual clause make applying it “more predictable” than its ACCA counterpart. Brief for Petitioner 28, 29. We disagree with both arguments.

A

The essentials of Justice Thomas's position go as follows. Section 16(b), he says, cannot have one meaning, but could have one of two others. See post, at 229. The provision cannot demand an inquiry merely into the elements of a crime, because that is the province of § 16(a). See supra, at 153 (setting out § 16(a)'s text). But that still leaves a pair of options: the categorical, ordinary-case approach and the “underlying-conduct approach,” which asks about the specific way in which a defendant committed a crime. Post, at 229. According to Justice Thomas, each option is textually viable (although he gives a slight nod to the latter based on

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 631–636 (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 “had good reasons” for originally adopting the categorical approach, based partly on ACCA's text (which, by the way, uses the word “involves” identically) and partly on the “utter impracticability” of the alternative. Id., at 604–605 (majority opinion). “The only plausible interpretation” of ACCA's residual clause, we concluded, “requires use of the categorical approach”—even if that approach could not in the end satisfy constitutional standards. Id., at 605 (internal quotation marks and alteration omitted).

The same is true here—except more so. To begin where Johnson did, the Government once again “has not asked us to abandon the categorical approach in residual-clause cases.” Id., at 604. To the contrary, and as already noted, the Government has conceded at every step the correctness of that statutory construction. See supra, at 160. And this time, the Government's decision is even more noteworthy than before—precisely because the Johnson dissent laid out the opposite view, presenting it in prepackaged form for the

Perhaps one reason for the Government's reluctance is that such an approach would generate its own constitutional questions. As Justice Thomas relates, post, at 225, 231, this Court adopted the categorical approach in part to “avoid[ ] the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries.” Descamps v. United States, 570 U. S. 254, 267 (2013). Justice Thomas thinks that issue need not detain us here because “the right of trial by jury ha[s] no application in a removal proceeding.” Post, at 231 (internal quotation marks omitted). But although this particular case involves removal, § 16(b) is a criminal statute, with criminal sentencing consequences. See supra, at 153. And this Court has held (it could hardly have done otherwise) that “we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context.” Leocal, 543 U. S., at 12, n. 8. So Justice Thomas's suggestion would 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)'s 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 “the statute of conviction, not to the facts of each defendant's conduct.” Taylor v. United States, 495 U. S. 575, 601 (1990); see Leocal, 543 U. S., at 7 (Section 16 “directs our focus to the `offense' of conviction . . . rather than to the particular facts”). Simple references to a “conviction,” “felony,” or “offense,” we have stated, are

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 ACCA's 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 features—the ordinary-case inquiry and a hazy risk threshold—that 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 Government's final argument, the experience of applying both statutes has generated confusion and division among lower courts.

The Government first—and foremost—relies on § 16(b)'s express requirement (absent from ACCA) that the risk arise

To assess that claim, start with the meaning of § 16(b)'s “in the course of” language. That phrase, understood in the normal way, includes the conduct occurring throughout a crime's commission—not just the conduct sufficient to satisfy the offense's formal elements. The Government agrees with that construction, explaining that the words “in the course of” 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., “in the course of” the conspiracy); it is irrelevant that conspiracy's 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 violence under § 16(b) because of the prospects of an encounter while the burglar remains in a building (i. e., “in the course of” 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. 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)'s “in the course of” language does little to narrow or focus the statutory inquiry. All that the phrase excludes is a court's ability to consider the risk that force will be used after the crime has entirely con-

And that is just what courts did when applying ACCA's residual clause—and for the same reason. True, that clause lacked an express temporal limit. But not a single one of this Court's ACCA decisions turned on conduct that might occur after a crime's 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 (2011) (assessing the risks attached to the “confrontations that initiate and terminate” vehicle fight, along with “inter-vening” events); Chambers v. United States, 555 U. S. 122, 128 (2009) (rejecting the Government's argument that violent incidents “occur[ring] long after” a person unlawfully flailed to report to prison rendered that crime a violent felony). Nor could those decisions have done otherwise, given the statute's 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 during—not after— its commission. Thus, the analyses under ACCA's residual clause and § 16(b) coincide.

The upshot is that the phrase “in the course of” makes no difference as to either outcome or clarity. Every offense that could have fallen within ACCA's residual clause might equally fall within § 16(b). And the difficulty of deciding whether it does so remains just as intractable. Indeed, we

Second, the Government (and again, The Chief Justice's dissent, see post, at 197) observes that § 16(b) focuses on the risk of “physical force” whereas ACCA's residual clause asked about the risk of “physical injury.” The § 16(b) inquiry, the Government says, “trains solely” on the conduct typically involved in a crime. Brief for Petitioner 36. By contrast, the Government continues, ACCA's residual clause required a second inquiry: After describing the ordinary criminal's conduct, a court had to “speculate about a chain of causation that could possibly result in a victim's injury.” Ibid. The Government's conclusion is that the § 16(b) inquiry is “more specific.” Ibid.

Third, the Government briefly notes that § 16(b), unlike ACCA's residual clause, is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. (The Chief Justice's dissent reiterates this argument, with some additional references to our caselaw. See post, at 201–203.) 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 155. According to the Government, those crimes provided “contradictory and opaque indications” 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 ACCA's residual clause.

But the Government's conclusion does not follow. To say that ACCA's listed crimes flailed to resolve the residual clause's 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 Justice's suggestion, see post, at 171, discarding an interpretive tool once it is found not to actually aid in interpretation hardly “expand[s]” the scope of a statute.) That Johnson went so much further—invalidating a statutory provision rather than construing it independently of another—demonstrates that the list of crimes was not the culprit. And indeed, Johnson explicitly said as much. As described earlier, Johnson found the residual clause's vagueness to reside in just “two” of its features: the ordinary-case requirement and a fuzzy risk standard. See 576 U. S., at 597–598; supra, at 158–159. Strip away the enumerated crimes—as Congress did in § 16(b)—and those dual flaws yet remain. And ditto the textual indeterminacy that flows from them.

Faced with the two clauses' linguistic similarity, the Government relies significantly on an argument rooted in judicial

7 “The most likely

Section 16(b) case” before this one. Ibid. explanation,” the Government concludes, is that “Section 16(b) is clearer” than its ACCA counterpart. Id., at 47.

But in fact, a host of issues respecting § 16(b)'s 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 Resi-

Nor does this Court's prior handling of § 16(b) cases support the Government's argument. To be sure, we have heard oral argument in only two cases arising from § 16(b) (including this one), as compared with five involving ACCA's residual clause (including Johnson).12 But while some of those ACCA suits were pending before us, we received a number of petitions for certiorari presenting related issues in the § 16(b) context. And after issuing the relevant ACCA decisions, we vacated the judgments in those § 16(b) cases

And of course, this Court's 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 598–600; supra, at 157–159. The Government would condemn us to repeat the past—to rerun the old ACCA tape, as though we remembered nothing from its first showing. But why should we disregard a lesson so hard learned? “Insanity,” Justice Scalia wrote in the last ACCA residual-clause case before Johnson, “is doing the same thing over and over again, but expecting different results.” Sykes, 564 U. S., at 28 (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 “[t]wo features of [ACCA's] residual clause conspire[d] to make it unconstitutionally vague.” 576 U. S., at 597. Because the clause had both an ordinary-case requirement and an ill-defined risk threshold, it necessarily “de-volv[ed] into guesswork and intuition,” invited arbitrary enforcement, and flailed to provide fair notice. Id., at 600. Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes

It is so ordered.

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 flounders 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. 591 (2015), Jus-

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 206–210 (dissenting opinion); Johnson, supra, at 611–624 (opinion concurring in judgment). 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 ben-eft of (at least) those “customary procedures to which free-men 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 207, 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

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 sufi-fcient certainty” about the charges involved. 4 W. Black-stone, 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 partic-

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 (in-cluding wild animals, no less), the court held the statute flailed 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

1

however strong the evidence may be.” Ibid.

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 pen-

These early cases, admittedly, often spoke in terms of con-struing vague laws strictly rather than declaring them void. See, e. g., post, at 208–209 (opinion of Thomas, J.); Johnson, 576 U. S., at 613–616 (opinion of Thomas, J.). But in substance void the law is often exactly 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”); n. 1, supra (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 ar-

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

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.

* * *

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 595. 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 176–180.

First principles aside, the government suggests that at least this Court's 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 “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

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 crimes—and 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 Mid-dleground Between Criminal and Civil Law, 101 Yale L.

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 210–215 (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

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 (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 & Wit-tes, Preventative Detention in American Theory and Practice, 2 Harv. Nat. 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).

* * *

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 flails 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 pre -viously “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 flails 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 597–598. 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.

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 604; 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 223–235. 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 decision-making. We rely on it to “yield insights (or reveal pitfalls) we cannot muster guided only by our own lights.” Maslen-jak v. United States, 582 U. S. 335, 354 (2017) (Gorsuch, J., concurring in part and concurring in judgment).

While sometimes we may or even must forgo the adversar-ial 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

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.

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.

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 “indeterminacy of the wide-ranging inquiry” it required. 576 U. S. 591, 597 (2015). Today, the Court relies wholly on Johnson—but only some of Johnson— to strike down another provision, 18 U. S. C. § 16(b). Because § 16(b) does not give rise to the concerns that drove the Court's decision in Johnson, I respectfully dissent.

“(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.”

This definition of “crime of violence” is also incorporated in the definition of “aggravated felony” in the Immigration and Nationality Act. 8 U. S. C. § 1101(a)(43)(F) (“aggravated felony” includes “a 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 year” (footnote omitted)). A conviction for an aggravated felony carries serious consequences under the immigration laws. It can serve as the basis for an alien's 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 Di-maya's case. An Immigration Judge and the Board of Immigration Appeals interpreted § 16(b) to cover Dimaya's 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 Dimaya's challenge. A plurality of the Court rejects the Government's argument in favor of a civil standard, because of the “grave nature of deportation,” Jordan v. De George ,

This is not our first encounter with § 16(b). In Leocal v. Ashcroft, 543 U. S. 1 (2004), we were asked to decide whether either subsection of § 16 covers a particular category of state crimes, specifically driving under the influence (DUI) offenses involving no more than negligent conduct. Id., at 6. Far from finding § 16(b) “hopeless[ly] indetermina[te],” John-son, 576 U. S., at 598, we considered the provision clear and unremarkable: “while § 16(b) is broader than § 16(a) in the sense that physical force need not actually be applied,” the provision “simply 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,” Leocal, 543 U. S., at 10–11. Applying that standard to the state offense at issue, we concluded—unanimously—that § 16(b) “cannot be read to include [a] conviction for DUI causing serious bodily injury under Florida law.” Id., at 11.

Leocal thus provides a model for how courts should assess whether a particular crime “by its nature” 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 felony “for a person to operate a vehicle while under the influence and, `by reason of such operation, caus[e] . . . [s]eri-ous bodily injury to another.' ” Id., at 7. Our § 16(b) analysis, in turn, focused on those specific elements in concluding that a Florida offender's acts would not naturally give rise to the requisite risk of force “in the course of committing the offense.” Id., at 11. “In no `ordinary or natural' sense,” we explained, “can it be said that a person risks having to `use'

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 “violent felony” to include “any 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. ” 18 U. S. C. § 924(e)(2)(B)(ii) (emphasis added).

In Johnson, we concluded that the ACCA residual clause (the “or otherwise” language) gave rise to two forms of intractable uncertainty, which “conspire[d]” to render the provision unconstitutionally vague. 576 U. S., at 597. First, the residual clause asked courts to gauge the “potential risk” of “physical injury” posed by the conduct involved in the crime. Ibid. That inquiry, we determined, entailed not only an evaluation of the “criminal's behavior,” but also required courts to consider “how the idealized ordinary case of the crime subsequently plays out.” Ibid. Second, the residual clause obligated courts to compare that risk to an indeterminate standard—one that was inextricably linked to the provision's four enumerated crimes, which presented differing kinds and degrees of risk. Id., at 598. This murky confluence of features, each of which “may [have been] tolerable in isolation,” together “ma[de] a task for us which at best could be only guesswork.” Id., at 602.

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

To begin, § 16(b) yields far less uncertainty “about how to estimate the risk posed by a crime.” Johnson, 576 U. S., at 597. 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 offender's conduct presented a “potential risk” of injury. Forced to give meaning to that befuddling choice of phrase— which layered one indeterminate term on top of another—we understood the word “potential” to signify that “Congress intended to encompass possibilities even more contingent or remote than a simple `risk.' ” James, 550 U. S., at 207–208. As we explained in Johnson, that made for a “speculative”

Second, § 16(b) focuses exclusively on the risk that the offender will “use[ ]” “physical force” “against” another person or another person's property. Thus, unlike the ACCA residual clause, “§ 16(b) plainly does not encompass all offenses which create a `substantial risk' that injury will result from a person's conduct.” Leocal, 543 U. S., at 10, n. 7 (emphasis added). The point is not that an inquiry into the risk of “physical force” is markedly more determinate than an inquiry into the risk of “physical injury.” But see ante, at 169–170. The difference 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 offender's acts, or another person's reaction, might result in unintended or negligent harm.

Third, § 16(b) has a temporal limit that the ACCA residual clause lacked: The “substantial risk” of force must arise “in the course of committing the offense.” 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 (“The reckless disregard in § 16 relates . . . to the risk that the use of physical force against another might be required in committing a crime.”).

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 “grave uncertainty about how to estimate the risk posed by a crime.” 576 U. S., at 597. “Critically,” we said—a word that tends to mean something— “picturing the criminal's behavior is not enough.” Ibid. (emphasis added). Instead, measuring “potential risk” “seemingly require[d] the judge to imagine how the idealized ordinary case of the crime subsequently plays out.” Ibid. (emphasis added). Not so here. In applying § 16(b), considering “the criminal's behavior” is enough.

Those three distinctions—the unadorned reference to “risk,” the focus on the offender's own active employment of force, and the “in the course of committing” limitation—also 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, “by its nature,” carries “a substantial risk” that the possessor will use force against another “in the course of committing the offense.” 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.

Failure to report to a penal institution, the subject of Chambers v. United States, 555 U. S. 122 (2009), is another crime “whose treatment becomes more obvious under § 16(b) than under ACCA,” ante, at 169. In Chambers, the Government argued that the requisite risk of injury arises not necessarily at the time the offender flails to report to prison, but instead later, when an officer attempts to recapture the

DUI offenses are yet another example. Because § 16(b) asks about the risk that the offender will “use[ ]” “physical force,” we readily concluded in Leocal that the subsection does not cover offenses where the danger arises from the offender's negligent or accidental conduct, including drunk driving. 543 U. S., at 11. 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 (2008). Our decision was based, however, on the inference that the clause must cover only “purposeful, `violent,' and `aggressive' conduct”—a test derived not from the “conduct that presents a serious potential risk of physical injury” language, but instead by reference to (what we guessed to be) the unifying characteristics of the enumerated offenses. Id., at 144–145. Four Members of the Court criticized that test, see id., at 150–153 (Scalia, J., concurring in judgment); id., at 158–160, 162–163 (Alito , J., dissenting), though they themselves disagreed about whether DUIs were covered, see id., at 153–154 (opinion of Scalia, J.); id., at 156–158 (opinion of Alito , J.). And the Court distanced itself from the Begay requirement only a few years later when confronting the crime of vehicular fight. See Sykes, 564 U. S., at 12–13; Johnson, 576 U. S., at 600–601.

In our first foray, James, we resolved the case by asking whether the risk posed by the crime of attempted burglary was “comparable to that posed by its closest analog among the enumerated offenses,” which was completed burglary. 550 U. S., at 203. While that rule “[took] care of attempted burglary,” it “offer[ed] no help at all with respect to the vast majority of offenses, which have no apparent analog among the enumerated crimes.” Johnson, 576 U. S., at 599. 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 (opinion of Scalia, J.). But that approach also proved to be harder than it sounded. See id., at 219–227.

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; see Chambers, 555 U. S., at 128 (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.

The enumerated offenses, and our Court's flailed attempts to make sense of them, were essential to Johnson's conclusion that the residual clause “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id., at 598. 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 598, 603. In the majority's retelling today, the difficulty inhered solely in the fact that the statute paired such a standard with the ordinary case inquiry. See ante, at 159, 161, 171. But that account sidesteps much of Johnson's reasoning. See 576 U. S., at 596–597, 598, 599–601, 603. Our opinion emphasized that the word “otherwise” “force[d]” courts to interpret the amorphous standard “in light of” the four enumerated crimes, which are “not much more similar to one another in kind than in degree of risk posed.” Id., at 598, 600. Or, as Johnson put it more vividly, “[t]he phrase `shades of red,' standing alone, does not generate confusion or unpredictability; but the phrase `fire-engine red, light pink, maroon, navy blue , or colors that otherwise involve shades of red' assuredly does so.” Id., at 603. Indeed, the author of Johnson had previously, and repeatedly, described this feature of the residual clause as the “crucial . . . respect” in which the law was problematic. See James, 550 U. S., at

With § 16(b), by contrast, a court need simply consider the meaning of the word “substantial”—a 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 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 “give up on trying to interpret the clause by reference to” those offenses, rather than striking down the provision entirely. Ante, at 171. No litigant in Johnson suggested that solution, which is not surprising. Such judicial redrafting could have expanded the reach of the criminal provision—surely a job for Congress alone.

In any event, I doubt the majority's 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 “sum” of the “uncertainties” in the ACCA residual clause, confirmed by years of experience, that “convince[d]” us the provision was beyond salvage. John-son, 576 U. S., at 601–602. Those failings do not characterize the provision at issue here.

Because I would rely on those distinctions to uphold § 16(b), the Court reproaches me for not giving sufficient weight to a “core insight” of Johnson. Ante, at 161, n. 4; see ante, at 188 (opinion of Gorsuch, J.) (arguing that § 16(b) runs afoul of Johnson “to the extent [§ 16(b)] requires an `ordinary case' analysis”). 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 602. 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.

In addition, § 16 serves as the universal definition of “crime of violence” for all of Title 18 of the United States Code. Its language is incorporated 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 distrib-uting 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 “crime of violence” applicable to § 924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence,” or possessing a firearm “in furtherance of any such crime.” §§ 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 Court's holding calls into question convictions under what the Government warns us is an “oft-prosecuted offense.” Brief for Petitioner 12.

Because Johnson does not compel today's result, I respectfully dissent.

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

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 613–624 (opinion of Thomas, J.). Second, if the Court thinks that § 16(b) is unconstitutionally vague because of the “categorical approach,” see ante, at 157–162, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.

I

continue to harbor doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause—and 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 vague as ap-

The Fifth Amendment's Due Process Clause provides that no person shall be “deprived of life, liberty, or property, without due process of law.” Section 16(b), as incorporated 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 “law of the land” view of due process is incorrect. Under that view, due process “require[s] only that our Government . . . proceed . . . according to written constitutional and statutory provision[s] before depriving someone of life, liberty, or property.” Nelson v. Colorado, 581 U. S. 128, 131, n. 1 (2017) (Thomas, J., dissenting) (internal quotation marks omitted). More than a half century after the founding, the Court rejected this view of due process in Murray's Lessee v. Hobo-ken Land & Improvement Co., 18 How. 272 (1856). See id., at 276 (holding that the Due Process Clause “is a restraint on the legislative as well as on the executive and judicial powers of the government”). But the textual and historical support for the law-of-the-land view is not insubstantial. 1

Even under Murray's Lessee , the vagueness doctrine is legitimate only if it is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.” Id., at 277. That proposition is dubious. Until the end of the 19th century, “there is little indication that anyone . . . believed that courts had the power under the Due Process Claus[e] to nullify statutes on [vagueness] ground[s].” Johnson, supra, at 616–617 (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 613–616 (opinion of Thomas, J.); e. g., ante, at 178–180, and n. 1 (Gorsuch, J., concurring in part and concurring in judgment) (collecting cases). 2 The modern vagueness doctrine,

Papers of Alexander Hamilton 35 (H. Syrett & J. Cooke eds. 1962) (“The words `due process' have a precise technical import, and . . . can never be referred to an act of legislature”). 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 178–180 (Gorsuch, J., concurring in part and concurring in judgment) (citing Blackstone's discussion of a case about “cattle”). 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 “ambiguity” in the text and cannot be used “to defeat the obvious intention of the legislature.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.).

Early American courts also declined to apply nonpenal statutes that were “unintelligible.” Johnson v. United States, 576 U. S. 591, 616, n. 3 (2015) (Thomas, J., concurring in judgment); e. g., ante, at 178–180, and n. 1 (opinion of Gorsuch, J.) (collecting cases). Like lenity, however, this practice reflected a principle of statutory construction that was much nar-

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 abrogate it—and 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) (“Arizona, by the way, seems to have preserved a fair and free society without adopting the rule that criminal statutes are to be strictly construed” (citing Ariz. Rev. Stat. Ann. § 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 “penal” statutes, 1 W. 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, supra, at 612–613 (opinion of Thomas, J.); 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 “extension of the rule of strict construction of penal statutes” because it “expressly include[s] civil statutes within its scope,” reflecting a “regrettable disregard” for legislatures). 3 In short,

rower 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 “fair notice.” See Johnson, supra, at 616, n. 3 (opinion of Thomas, 3 This distinction between penal and nonpenal statutes would be decisive J.). here because, traditionally, civil deportation laws were not considered penal. See Bugajewitz v. Adams, 228 U. S. 585, 591 (1913); Flong Yue Ting v. United States, 149 U. S. 698, 709, 730 (1893). Although this Court has applied a kind of strict construction to civil deportation laws, that practice

Tellingly, the modern vagueness doctrine emerged at a time when this Court was actively interpreting the Due Process Clause to strike down democratically enacted laws— first in the name of the “liberty of contract,” then in the name of the “right to privacy.” See Johnson, supra, at 618– 621 (opinion of Thomas, J.). That the vagueness doctrine “develop[ed] on the federal level concurrently with the growth of the tool of substantive due process” does not seem like a coincidence. Note, 23 Ind. L. J., at 278. Like substantive due process, the vagueness doctrine provides courts with “open-ended authority to oversee [legislative] choices.” Kolender v. Lawson, 461 U. S. 352, 374 (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 John-son, supra, at 613 (opinion of Thomas, J.) (discussing Chicago v. Morales, 527 U. S. 41 (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. See, e. g., Williams v. Pennsylvania, 579 U. S. 1 (2016); BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996); Foucha v. Louisiana, 504 U. S. 71 (1992); cf. Montgomery v. Louisiana, 577 U. S. 190 (2016). If vagueness is another example of this practice, 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, supra, at 622, n. 7 (opinion of Thomas, J.) (stressing the need for specificity when assessing alleged due process rights). The Flounders were familiar

did not emerge until the mid-20th century. See Flong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948).

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 “he 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.” 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 “shall think necessary for the pub-lick Security.” 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 counterresolutions condemning the views of Virginia and Kentucky. See Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Int'l 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.

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 “were not a party to the [Constitution]” and that “cases between the government and aliens . . . arise under the law of nations”); id., at 100 (statement of William Cowan) (identifying the source of rights “as to citizens, the Constitution; as to aliens, the law of nations”); A. Addison, A Charge to the Grand Juries of the County Courts of the Fifth

The First Deportation Law, 10 Tulsa J. Comp. & Int'l 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 (“Whether 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 slavery”). The fear was that “mobile free Negroes would intermingle with slaves, encourage them to run away, and foment insurrection.” I. Berlin, Slaves Without Masters 92 (1974). 5 The Jeffersonians also argued that the Alien Friends Act violated due process because, if aliens disobeyed the President's orders to leave the country, they could be convicted of a crime and imprisoned without a trial. See, e. g., Kentucky Resolutions ¶6, 4 Elliot's Debates 541. That charge was false. The Alien Friends Act gave federal courts jurisdiction over alleged violations of the President's orders. See § 4, 1 Stat. 571.

Second, the Federalists responded that the expulsion of aliens “did not touch life, liberty, or property.” Virginia Debates 34. The founding generation understood the phrase “life, liberty, or property” to refer to a relatively narrow set of core private rights that did not depend on the will of the government. See Wellness Int'l Network, Ltd. v. Sharif, 575 U. S. 665, 713–714 (2015) (Thomas, J., dissenting); Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 566–568 (2007) (Nelson). Quasi-private rights— “privileges” or “franchises” bestowed by the government on individuals—did not qualify and could be taken away without judicial process. See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. 138, 172 (2015) (Thomas, J., dissenting); Nelson 567–569. The Federalists argued that an alien's right to reside in this country was one such privilege. See, e. g., Virginia Debates 34 (arguing that “ordering away an alien . . . was not a matter of right, but of flavour,” 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 “remain in the country . . . merely as matter of favor and permission” 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

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 reinserted itself into the regulation of immigration. When this Court was presented with constitutional challenges to Congress' 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 Federalists' argument that resident aliens do not enjoy constitutional rights, see Wong Wing v. United States, 163 U. S. 228, 238 (1896), it agreed that civil deportation statutes do not implicate “life, liberty, or property,” see, e. g., Harisiades v. Shaughnessy , 342 U. S. 580, 584–585 (1952) (“[T]hat admission for permanent resi-

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 (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 (1967) (“ `psychopathic personality' ”); Jordan v. De George , 341 U. S. 223, 232 (1951) (“ `crime involving moral turpitude' ”); cf. Mahler v. Eby , 264 U. S. 32, 40 (1924) (“ `undesirable residents' ”). 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 vague removal statutes is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of Eng-land, before the emigration of our ancestors” protected by the Fifth Amendment's Due Process Clause. Murray's Lessee, 18 How., at 277.

Instead of a longstanding procedure under Murray's Lessee, perhaps the vagueness doctrine is really a way to enforce the separation of powers—specifically, the doctrine of nondelegation. See Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1806 (2012) (“Vague statutes have the effect of delegating lawmaking authority to the executive”). 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 Madison's Report 369–371. And this Court's precedents have occasionally described the vagueness doctrine in terms of nondelegation. See, e. g., Grayned v. City of Rockford, 408 U. S. 104, 108–109 (1972) (“A vague law impermissibly delegates basic policy matters”). But they have not been consistent on this front. See, e. g., Aptheker v. Secretary of State , 378 U. S. 500, 516 (1964) (“ `The objectionable quality of vagueness . . . does not depend upon . . . unchanneled delegation of legislative powers' ”); Maynard v. Cartwright, 486 U. S. 356, 361 (1988) (“Objections to vagueness under the Due Process Clause rest on the lack of notice”).

I agree that the Constitution prohibits Congress from del-egating core legislative power to another branch. See Department of Transportation v. Association of American Railroads, 575 U. S. 43, 68 (2015) ( AAR) (Thomas, J., concurring in judgment) (“Congress improperly `delegates' legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power”); accord, Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 487 (2001) (Thomas, J., concurring). But I locate that principle in the Vesting Clauses of Articles I, II, and III—not in the Due Process Clause. AAR, supra, at 67–69 (opinion of Thomas, J.); see also Hampton v. Mow Sun Wong , 426 U. S. 88, 123 (1976) (Rehnquist, J., dissenting) (“[T]hat there was an improper delegation of authority . . .

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 “there is no delegation question” 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 INA—namely, the Attorney General, immigration judges, and the Board of Immigration Appeals (BIA). But Congress does not “delegate” when it merely authorizes the Executive Branch to exercise a power that it already has. See AAR , supra, at 68 (opinion of Thomas, J.). And there is some founding-era evidence that “the executive Power,” Art. II, § 1, includes the power to deport aliens.

Blackstone—one of the political philosophers whose writings on executive power were “most familiar to the Framers,” Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 231, 253 (2001)—described the power to deport aliens as executive and located it with the King. Alien friends, Blackstone explained, are “liable to be sent home whenever the king sees occasion.” 1 Commentaries on the Laws of England 252 (1765). When our Constitution was ratified, moreover, “[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, of aliens.” Demore , 538 U. S., at 538 (opinion of O'Connor, J.) (quoting Flong Yue Ting , 149 U. S., at 709). Some of the Federalists defending the Alien Friends Act

Instead of the Executive, perhaps § 16(b) impermissibly delegates power to the Judiciary, since the courts of appeals often review the BIA's 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 “would simply be making up a law—that is, exercising legislative power.” 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 “ `goodness

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 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. See id., at 615–616. And that is how early American courts addressed constitutional challenges to statutes more generally. See id., at 615 (“[T]here is good evidence that [antebel-lum] courts . . . understood judicial review to consist `of a refusal to give a statute effect as operative law in resolving a case,' a notion quite distinct from our modern practice of

2

This Court's 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 (2010); United States v. Williams, 553 U. S. 285, 304 (2008); Maynard, 486 U. S., at 361; Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495, 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 “in all applications,” 576 U. S., at 603 (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 ACCA's residual clause was vague as applied to the crime at issue there: unlawful possession of a short-barreled shotgun. See id., at 600.

In my view, § 16(b) is not vague as applied to respondent. When respondent committed his burglaries in 2007 and 2009, he was “sufficiently forewarned . . . that the statutory consequence . . . is deportation.” De George , 341 U. S., at 232. At the time, courts had “unanimous[ly]” concluded that residential burglary is a crime of violence, and not “a single opinion . . . ha[d] held that [it] is not.” 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 “[i]n accord with common law tradition and the settled law of the federal circuits”). Residential burglary “ha[d] been considered a violent offense for hundreds of years . . . because of the potential for mayhem if burglar encounters resident.” United States v. Pinto, 875 F. 2d 143, 144 (CA7 1989). The Model Penal Code had recognized that risk, see ALI, Model

That same risk is present with respect to respondent's statute of conviction—first-degree residential burglary, Cal. Penal Code Ann. §§ 459, 460(a) (West 1999). The California Supreme Court has explained that the State's burglary laws recognize “the dangers to personal safety created by the usual burglary situation.” People v. Davis, 18 Cal. 4th 712, 721, 958 P. 2d 1083, 1089 (1998) (emphasis added). “ `[T]he fact that a building is used as a home . . . increases such danger,' ” 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) (“[T]he higher degree . . . is intended to prevent those situations which are most dangerous, most likely to cause personal injury” (emphasis deleted)). Although unlawful entry is not an element of the offense, courts “unanimous[ly]” 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. Maldo-nado , 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

Drawing on Johnson and the decision below, the Court suggests that residential burglary might not be a crime of violence because “ `only about seven percent of burglaries actually involve violence.' ” Ante, at 160, 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 statistic—which measures actual violence against a member of the household, see id., at 1, 12—is woefully underinclusive. It excludes other potential victims besides household members—for example, “a police officer, or a bystande[r] who comes to investigate,” James, supra, at 203. 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 ACCA's residual clause, § 16(b) covers offenses that involve a substantial risk of physical force “against the person or property of another.” (Emphasis added.) Surely the ordinary case of residential burglary involves at least one of these risks. According to the statistics referenced by the Court, most burglaries involve either 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, respondent's convictions for first-degree residential burglary are crimes of violence under § 16(b).

Finally, if facial vagueness challenges are ever appropriate, I adhere to my view that a law is not facially vague “ `[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.' ” Morales, 527 U. S., at 112 (Thomas, J., dissenting) (quoting Kolender, 461 U. S., at 370–371 (White, J., dissenting)). The residual clause of ACCA had such a core. See Johnson, 576 U. S., at 602; id., at 636–637 (Alito, J., dissenting). 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.

Even taking the vagueness doctrine and Johnson at face value, I disagree with the Court's decision to invalidate § 16(b). The sole reason that the Court deems § 16(b) unconstitutionally vague is because it reads the statute as incorpo-rating the categorical approach—specifically, the “ordinary case” approach from ACCA's residual clause. Although the Court mentions “[t]wo features” of § 16(b) that make it vague—the ordinary-case approach and an imprecise risk standard—the Court admits that the second feature is problematic only in combination with the first. Ante, at 161. Without the ordinary-case approach, the Court “ `do[es] not doubt' ” the constitutionality of § 16(b). Ibid.

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 alien's offense presents a substantial risk of physical force, courts should ask whether the alien's actual underlying conduct presents a substantial risk of physical force. I will briefly discuss the

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The categorical approach originated with Justice Black-mun's opinion for the Court in Taylor v. United States, 495 U. S. 575 (1990). The question in Taylor was whether ACCA's reference to “burglary” meant burglary as defined by state law or burglary in the generic sense. After “devot-ing 10 pages of [its] opinion to legislative history,” id., at 603 (Scalia, J., concurring in part and concurring in judgment), and finding that Congress had made “an inadvertent casualty in [the] complex drafting process,” id., at 589–590 (majority opinion), the Court concluded that ACCA referred to burglary in the generic sense, id., at 598. The Court then addressed how the Government would prove that a defendant was convicted of generic burglary, as opposed to another offense. Id., at 599–602. Taylor rejected the notion that the Government could introduce evidence about the “particular facts” of the defendant's underlying crime. Id., at 600. Instead, the Court adopted a “categorical approach,” which focused primarily on the “statutory definition of the prior offense.” Id., at 602.

Although Taylor was interpreting one of ACCA's enumerated offenses, this Court later extended the categorical approach to ACCA's residual clause. See James, 550 U. S., at 208. That extension required some reworking. Because ACCA's enumerated-offenses clause asks whether a prior conviction “is burglary, arson, or extortion,” 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 “involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). Thus, the Court held that the categorical approach for the residual clause asks “whether

Taylor gave a few reasons why the categorical approach was the correct reading of ACCA, see 495 U. S., at 600–601, but the “heart of the decision” was the Court's concern with limiting the amount of evidence that the parties could introduce at sentencing. Shepard v. United States, 544 U. S. 13, 23 (2005). Specifically, the Court was worried about potential violations of the Sixth Amendment. If the parties could introduce evidence about the defendant's underlying conduct, then sentencing proceedings might devolve into a full-blown minitrial, with factfnding by the judge instead of the jury. See id., at 24–26; Taylor, supra, at 601. While this Court's decision in Almendarez-Torres v. United States, 523 U. S. 224 (1998), allows judges to find facts about a defendant's prior convictions, a full-blown minitrial would look “too much like” the kind of factfnding that the Sixth Amendment requires the jury to conduct. Shepard, 544 U. S., at 25. By construing ACCA to require a categorical approach, then, the Court was following “[t]he rule of reading statutes to avoid serious risks of unconstitutionality.” Ibid.

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I disagreed with the Court's decision to extend the categorical approach to ACCA's residual clause. See James, 550 U. S., at 231–232 (dissenting opinion). The categorical approach was an “ `unnecessary exercise,' ” I explained, because it created the same Sixth Amendment problem that it tried to avoid. Id., at 231. Absent waiver, a defendant has the right to have a jury find “every fact that is by law a basis for imposing or increasing punishment,” including the fact of a prior conviction. Apprendi v. New Jersey, 530 U. S. 466,

My objection aside, the ordinary-case approach soon created problems of its own. The Court's 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).

The text of § 16(b) does not require a categorical approach. The INA declares an alien deportable if he is “convicted of an aggravated felony” after he is admitted to the United States. 8 U. S. C. § 1227(a)(2)(A)(iii). Aggravated felonies include “crime[s] of violence” as defined in § 16. § 1101(a)(43)(F). Section 16, in turn, defines crimes of violence as follows:

“(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.”

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 “nature” 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 “by its nature,” “substantial risk,” and “may” 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 (2009) (“[I]n ordinary speech words such as `crime,' `felony,' `offense,' and the like sometimes refer to a generic crime . . . and sometimes refer to the specific acts in which an offender engaged on a specific occasion”). It is entirely natural to use words like “nature” and “offense” to refer to an offender's actual underlying conduct. 7

of the offense” committed by a bar applicant as “recruiting persons to go overseas to aid the Loyalists in the Spanish Civil War”); TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 482 (1993) (O'Connor, J., dissenting) (describing “the nature of the offense at issue” as not “involv-ing grave physical injury” but rather as a “business dispute between two companies in the oil and gas industry”); United States v. Broce, 488 U. S. 563, 585–587 (1989) (Blackmun, J., dissenting) (describing “the nature of the charged offense” 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) (“[T]he underlying factual basis for a conviction governs whether the offense `by its nature constitutes a sexual offense against an individual who is less than 18 years of age' ” (quoting Mich. Comp. Laws § 28.722(e)(xi) (2006))); A Fix for Animal Abusers, Boston Herald, Nov. 22, 2017, p. 16 (“prosecutors were so horrified at the nature of his offense—his torture of a neighbor's dog”); Ward, Attorney of Convicted Ex-Official Accuses Case's Judge, Pittsburgh Post-Gazette, Nov. 10, 2015, p. B1 (identifying the “nature of his offense” as “taking money from an elderly, widowed client, and giving it to campaign funds”); Cross-Burning–Article Painted an Inaccurate Picture of Young Man in Question, Seattle Times, Aug. 12, 1991, p. A9 (“[The defendant] took no steps to prevent the cross that was burned from being constructed on his family's premises and later . . . assisted in concealing a second cross . . . . This was the nature of his offense”); Libman, A Parole/Probation Officer Talks With Norma Libman, Chicago Tribune, May 29, 1988, p. I31 (describing “the nature of the offense” as “not serious” if “there was no definitive threat on life” or if “the dollar-and-cents amount was not great”); Walsh, District–U. S. Argument Delays Warrant for Escapee's Arrest, Washington Post, May 29, 1986, p. C1 (describing “the nature of Murray's alleged offenses” as “point- [ing] at two officers a gun that was later found to contain one round of ammunition”).

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 “as an element.” Because § 16(b) covers “other” offenses and is separated from § 16(a) by the disjunctive word “or,” 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 de-

The first option is to consult the underlying facts of the alien's 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 603 (noting that “dozens” of similarly worded laws ask courts to assess “the riskiness of conduct in which an individual defendant engages on a particular occasion”). Nothing suggests that Congress imposed a more limited inquiry when it enacted § 16(b) in 1984. At the time, Congress had not yet enacted ACCA's residual clause, this Court had not yet created the categorical approach, and this Court had not yet recognized a Sixth Amendment limit on judicial fact-finding at sentencing, see Chambers v. United States, 555 U. S. 122, 132 (2009) (Alito, J., concurring in judgment).

The second option is to imagine the “ordinary case” of the alien's crime and then assess the riskiness of that hypothetical offense. But the phrase “ordinary case” does not appear in the statute. And imagining the ordinary case, the Court reminds us, is “hopeless[ly] indetermina[te],” “wholly `speculative,' ” and mere “guesswork.” Ante, at 158, 174 (quoting Johnson, supra, at 597, 598, 600); see also Chambers, supra, at 133 (opinion of Alito, J.) (observing that the categorical approach is “nearly impossible to apply consistently”). 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 633 (Alito, J., dissenting) (“When another interpretation is ready at hand, why should we assume that Congress gave the clause a meaning that is impossible—or even, exceedingly difficult—to apply”).

That the categorical approach is not the better reading of § 16(b) should not be surprising, since the categorical ap-

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, supra, at 603–604 (majority opinion) (“[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as `substantial risk' to real-world conduct”). Thus, if the underlying-conduct approach is a “reasonabl[e]” interpretation of § 16(b), it is our “plain duty” to adopt it. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 407 (1909). And it is reasonable, as explained above.

In Johnson, the Court declined to adopt the underlying-conduct approach for ACCA's residual clause. See 576 U. S., at 604–605. The Court concluded that the categorical approach was the only reasonable reading of ACCA because the residual clause uses the word “convictions.” Ibid. The Court also stressed the “utter impracticability of requir-

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 INA—“an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” § 1101(a)(43)(M)(i)—applies the underlying-conduct approach, not the categorical approach. 557 U. S., at 32. Although the INA also refers to “convic-t[ions],” § 1227(a)(2)(A)(iii), the Court was not swayed by that argument. The word “convict[ion]” means only that the defendant's underlying conduct must “ `be tied to the spe-cifc counts covered by the conviction,' ” not “acquitted or dismissed counts or general conduct.” Id., at 42. As for the supposed practical problems with proving an alien's prior conduct, the Court did not find that argument persuasive either. “[T]he `sole purpose' of the `aggravated felony' inquiry,” the Court explained, “ `is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself.' ” Ibid. And because the INA places the burden on the Government to prove an alien's conduct by clear and convincing evidence, § 1229a(c)(3)(A), “uncertainties caused by the passage of time are likely to count in the alien's favor,” id., at 42.

There are additional reasons why the practical problems identified in Johnson should not matter for § 16(b)—even assuming they should have mattered for ACCA's residual clause, see Lewis v. Chicago, 560 U. S. 205, 217 (2010) (“[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 enacted”). In a removal proceeding, any difficulties with identifying an alien's past conduct will fall on immigration judges, not federal courts. But those judges are already accustomed to

In short, we should not blithely assume that the reasons why this Court adopted the categorical approach for ACCA's residual clause also apply to the INA's list of aggravated felonies. As Nijhawan explained, “the `aggravated felony' statute, unlike ACCA, contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed.” 557 U. S., at 38. “The question” in each case is “to which category [the aggravated felony] belongs.” Ibid. As I have explained, § 16(b) belongs in the underlying-conduct category. Because that is the better reading of § 16(b)'s text—or at least a reasonable reading—the Court should have adopted it here.

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I see no prudential reason for maintaining the categorical approach for § 16(b). The Court notes that the Government “explicitly acknowledges” that § 16(b) employs the categorical approach. Ante, at 160. But we cannot permit the Government's concessions to dictate how we interpret a statute, much less cause us to invalidate a statute enacted by a coor-

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 172, n. 7. Surely the Court cannot credibly invoke stare decisis to defend the categorical approach—the same approach it says only a “lunatic” would continue to apply. Ante, at 174. If the Court views the categorical approach that way—the same way Johnson viewed it—then it must also agree that “[s]tanding by [the categorical approach] would undermine, rather than promote, the goals that stare decisis is meant to serve.” 576 U. S., at 606. That is especially true if the Court's 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 an-

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The Court's 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 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.