In Dimaya, the Supreme Court affirmed the Ninth Circuit's determination that the residual clause in 18 U.S.C. 16(b) (defining a crime of violence) is unconstitutionally vague under the principles announced in Johnson (as a reminder, Johnson dealt with the similarly worded residual clause under the ACCA, 18 U.S.C. 924(e)).
The majority rejected the government's request to distinguish the two residual clauses, explaining: "'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.' We abandoned that lunatic practice in Johnson and see no reason to start it again."
This case has important practical implications in both criminal and immigration contexts. A prior conviction can never qualify as a federal predicate crime of violence under the residual clause in section 16(b).
Of further note, Justice Gorsuch writes an important concurrence in support of the vagueness doctrine. He ends by declaring, "A government of laws and not of men can never tolerate that arbitrary power." It is worth the read.
In other news, in United States v. Arpaio, --- F.3d ---, No. 17-10448 (9th Cir. 2018), the Court appointed a special prosecutor to defend the district court's decision -- post presidential pardon -- to deny vacatur of the criminal-contempt conviction (instead the district court simply dismissed the proceedings). The appointment was necessary because the government indicated it would not defend the appeal.
The order did not reach the merits of the appeal, finding only that the Court had authority to appoint counsel under Fed. R. Crim. P. 42(a)(2); and that, independently, it had inherent authority to appoint a special counsel to represent a position abandoned by the United States on appeal.
