Washington(CNN) Justice Neil Gorsuch on Monday grilled a Justice Department lawyer about a provision of immigration law that requires the mandatory removal of some lawful permanent residents who have committed crimes.
The case -- the first of two the court will re-hear this week on immigration -- is being closely watched for any clues Gorsuch and other justices may leave for how they will consider the Trump administration's overall push to both limit immigration and increase deportations.
Monday was the first day of the Supreme Court's new term, full of blockbuster cases on Constitutional questions involving immigration, voting rights and religious liberty, among others.
The immigration case, Sessions v. Dimaya, focuses on the mandatory removal provision of the Immigration and Nationality Act as it relates to some lawful permanent residents who have committed crimes.
Only eight justices heard the case last term after the death of Justice Antonin Scalia, and in late June the court announced it would re-hear arguments this term, presumably so that Gorsuch could break some kind of a tie.
On Monday, Gorsuch dominated oral arguments. He grilled a lawyer for the government and at times seemed sympathetic to the arguments put forward by lawyers for the immigrant, James Garcia Dimaya.
Dimaya, a native of the Philippines, was admitted to the United States in 1992 as a lawful permanent resident. He attended high school in California and community college and has worked as a cashier and store manager.
In 2007 and 2009 he pleaded no contest to charges of residential burglary in California. An immigration judge determined that Dimaya was removable from the United States because of his two state court convictions. The court held that the convictions qualified for an "aggravated felony" under the Immigration and Nationality Act. The INA authorizes removal of non-citizens who have been convicted of defines aggravated felony to include "crimes of violence."
But lawyers for Dimaya appealed the conviction, arguing that it was unconstitutionally vague and that their client never had fair notice that his crimes would result in deportation.
And they suggested the reasoning of a 2015 opinion from Scalia,which struck a provision of the Armed Career Criminal Act as unconstitutionally vague, should extend to their case. That argument won in a federal appeals court.
Monday, Gorsuch seized on the vagueness argument and questioned how the courts should be able to decide whether Dimaya's conduct should trigger deportation.
He pressed whether when a law could "put people in prison and deprive them of liberty and result in deportation, we shouldn't expect Congress to be able to specify those who are captured by its laws?"
Congress, he suggested, would not have meant to delegate to the courts the question of whether Dimaya's crimes rose to the level of "crimes of violence."
"That sounds a lot like what a legislative committee might do," Gorsuch said. "And if I can't distinguish my job from a legislative committee's work, am I not verging on the separation of powers problem?"
Deputy Solicitor General Edwin Kneedler said that when it comes to deportation, "I think it is important for the court to understand that immigration provisions and grounds for deportation are often written in very broad and general terms and given content by the executive branch in which Congress has vested authority."
But Gorsuch cut him off.
"You are not asking for the executive to define these crimes," he said. "You are asking for us to do it right?"
Tuesday, the justices will rehear another immigration case concerning the prolonged detention for a class of immigrants. Gorsuch's vote could be key in that case as well.
"Both cases implicate the scope of the government's authority over different classes of immigrants in ways that won't directly bear on the travel ban litigation, but could provide important clues into what the key justices are thinking," said Steve Vladeck, a CNN contributor and professor of law at University of Texas School of Law.
The second case, Jennings v. Rodriguez, concerns the issue of prolonged detention.
The case was brought by a class of immigrants -- some who are seeking entrance at the border, others who are lawful permanent residents in prolonged detention who seek hearings to prove that they are neither flight risk nor a danger to society. It comes at a time when immigration groups lament the fact that the Obama administration deported record numbers of immigrants and the Trump administration has vowed to crack down further on enforcement.
Lower courts are divided on how they interpret the immigration detention statutes at issue in the case. In this case, the 9th US Circuit Court of Appeals ruled in favor of the class of immigrants requiring an individualized procedure after six months of detention. The Court stressed that while it was mandating that immigration judges hold hearings for certain individuals, it was not ordering them to release any single individual.
The case is complicated by the diversity of the class of immigrants who brought the case, as well as the fact that three immigration statutes are in play.
The class of immigrants in the case are all incarcerated and they include lawful permanent residents with minor criminal history and asylum seekers who have passed an initial screening but who are waiting for the chance to raise their claims. The class does not include any individuals who the government deems to be national security risks. They are covered by separate statutes not at issue.
The lead plaintiff, Alejandro Rodriguez, is a lawful permanent resident who was brought to the United States as an infant. He was employed as a dental assistant when he was put in removal proceedings, which precede deportation, based on possession of a controlled substance and "joyriding." He was detained for over three years while he challenged his removal. He eventually managed to appeals his case in a process that took over seven years.
"Mr. Rodriguez's case is not unique," his lawyers argued.
The government argued that the lower court opinion represented a "dramatic and wholesale revision" to the long-standing system and replacing it with "a radical new one in which aliens arriving at our borders or convicted of crimes have a presumptive entitlement to be released in the United States."