The Curious Vocabulary of Justice Kavanaugh

The difference between the lightning bug and the lightning

By Andrew R. Arthur on March 26, 2019

One of my jobs at the Center for Immigration Studies is to read and interpret legal decisions. When you do that, verbiage is important. Newly appointed Justice Brett Kavanaugh should learn that lesson as it relates to the use of the word "noncitizen".

First a caveat: I'm not now, nor will I ever be anywhere near as good a lawyer, or a judge, as Brett Kavanaugh, and absent some purely fortuitous events, I will never be a justice. I do not know him, but I know his work. In July 2018, Politico summarized some of his key opinions on the D.C. Circuit. As the Congressional Research Service (CRS) noted that month:

Judge Kavanaugh has served as a judge on the D.C. Circuit since May 30, 2006. He has also sat, by designation, on judicial panels of the U.S. Court of Appeals for the Eighth Circuit and the U.S. Court of Appeals for the Ninth Circuit, and also served on three-judge panels of the U.S. District Court for the District of Columbia.

During his tenure on the bench, Judge Kavanaugh has adjudicated more than 1,500 cases, almost all while a member of either a three-judge or en banc panel of the D.C. Circuit.

Put into perspective, that is about 9.5 cases per month, or about one every two work days. That is superhuman jurisprudence.

With that said, however, Justice Kavanaugh should follow the teachings of that wise legal scholar, Mark Twain, who famously stated: "The difference between the almost right word and the right word is really a large matter. 'tis the difference between the lightning bug and the lightning."

On March 21, 2019, I wrote about the Supreme Court's recent decision in Nielsen vs. Preap. Justice Kavanaugh wrote a concurrence in that opinion that ran just over two pages, and which largely describes what that decision is and is not about:

The sole question before us is narrow: whether, under [section 236(c) of the Immigration and Nationality Act (INA)], the Executive Branch's mandatory duty to detain a particular noncitizen when the noncitizen is released from criminal custody remains mandatory if the Executive Branch fails to immediately detain the noncitizen when the noncitizen is released from criminal custody — for example, if the Executive Branch fails to immediately detain the noncitizen because of resource constraints or because the Executive Branch cannot immediately locate and apprehend the individual in question. No constitutional issue is presented. The issue before us is entirely statutory and requires our interpretation of the strict 1996 illegal-immigration law passed by Congress and signed by President Clinton.

I will allude to that last sentence at the end. My major point is Justice Kavanaugh's use of the wrong word: "noncitizen".

He is correct that the decision in Preap is "entirely statutory", as my March 21 post explains in detail. The language used by Congress in section 236(c) of the INA, and how to interpret that language, was the issue. This is an important point, because Congress is deemed to say what it meant and mean what it said, and even if reviewing courts don't like the policy, they must interpret it faithfully unless it is contrary to the Constitution. Simply put: Words matter.

Ironically, however, Justice Kavanaugh used the wrong words, or rather the wrong word, 19 times in his extremely brief concurrence: "noncitizen".

As I explained in a June 2017 post referencing a different Supreme Court case, Moncrieffe v. Holder:

The Supreme Court is generally known for the precision of its language, and so Moncrieffe raises the question whether "noncitizen" is an appropriate legal term for a person who is subject to removal under section 240 of the INA. The answer is "no"; I will therefore attempt to delineate amongst the terms.

First, section 101(a)(3) of the INA, in the "definitions" section of that act, states: "The term 'alien' means any person not a citizen or national of the United States." Section 101(a)(22) of the INA, in turn, states: "The term 'national of the United States' means: (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."

Thus, a person can be a "national of the United States" but not a citizen. In her dissent in Miller v. Albright, 523 U.S. 420, 467 n.2 (1998), Justice Ginsburg helpfully explained the differences between "nationals" of the United States and citizens:

Nationality and citizenship are not entirely synonymous; one can be a national of the United States and yet not a citizen [Section 101(a)(22) of the INA]. The distinction has little practical impact today, however, for the only remaining noncitizen nationals are residents of American Samoa and Swains Island. [Emphasis added.]

With due respect to Justice Ginsburg, the distinction actually does have practical impact today, as I explained in that post.

And lest you think this point is picayune, consider the following statement by Justice Kavanagh in Preap:

This case is not about whether a noncitizen may be removed from the United States on the basis of criminal offenses. Under longstanding federal statutes, the Executive Branch may remove noncitizens from the United States when the noncitizens have been convicted of certain crimes, even when the crimes were committed many years ago.

This case is also not about whether a noncitizen may be detained during removal proceedings or before removal. Congress has expressly authorized the Executive Branch to detain noncitizens during their removal proceedings and before removal.

Again, with only the highest respect for the judicial achievements of Brett Kavanaugh, he is dead wrong.

Can the executive branch remove certain "noncitizens from the United States when the noncitizens have been convicted of certain crimes?" Yes. Can it remove all of them? No, because the term "noncitizen" has no legal meaning except to the degree that Congress has set forth.

U.S. Immigration and Customs Enforcement (ICE) has recently become a target from certain quarters because of its enforcement of the immigration laws the Congress has written. This is particularly ironic, because many of those quarters have offices at the top of Capitol Hill. That said, I would join the chorus of ICE's detractors if it were to attempt to remove a resident of American Samoa or Swains Island (noncitizens) from the United States.

Here is what Congress has written in the preface to the grounds of inadmissibility in section 212(a) of the INA: "Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States ... ." (Emphasis added.) Here is what Congress has written in the preface to the grounds of deportability in section 237(a) of the INA: "Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens ... ." (Emphasis added.) Finally, section 240(a)(1) of the INA, governing removal proceedings, states: "An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien." (Emphasis added.)

If, as an immigration judge, ICE had presented a resident of American Samoa or Swains Island to me, that individual's case would have been terminated immediately with my profuse apologies to the respondent on behalf of the United States, and some strongly worded admonitions to the ICE trial attorney. But that never would have happened, because they, and ICE generally, know the law. Only "aliens" are inadmissible, only "aliens" are deportable, and only "aliens" may be removed.

Note that there are situations in which there may be a question as to whether someone is a national of the United States, in much the same way as there may be questions as to whether someone is a citizen of the United States. Absent such questions, however, nationals of the United States do not belong in immigration court or in immigration detention.

In fact, Justice Kavanaugh did 19 times what the dissent in Preap only did once (by my count): misuse the term "noncitizen", but it quickly returned to the correct term:

A provision of the Immigration and Nationality Act, [section 236(c) of the INA], focuses upon potentially deportable noncitizens who have committed certain offenses or have ties to terrorism. It requires the Secretary of Homeland Security to take those aliens into custody "when ... released" from prison and to hold them without a bail hearing until Government authorities decide whether to deport them. [Emphasis added.]

Why did Justice Kavanaugh use the wrong term? Your guess is as good as mine, and I am loath (professionally) to ascribe motivations to individuals where those motivations are not clear. If I had to guess, however, Justice Kavanaugh is likely on his best behavior given his "contentious" confirmation process. I hope, however, that that is not true, but that rather neither he nor his clerks appreciated the distinction.

If it is true, however, two points are in order. First, as Twain's quote above makes clear, the right word matters, and this is truer in statutory interpretation than it is in the writing of novels. (NB: I will admit that in writing the preceding sentence, I used the phrase "more true" before Microsoft Word reminded me that those are the wrong words. Even a soulless computer system knows the truth of the importance of proper verbiage.) If the Supreme Court, or any court, is to do a proper statutory analysis, it must focus on Congress' intent as expressed through the exact words Congress used.

Second, I would hope that Justice Kavanaugh would not allow public sentiment to influence in any way his application of the law. Doing what is right is more important as a matter of law and ethics than doing what is expected. If the baseline rule of physicians is "First, do no harm," the first rule of any judge must be: "Fiat justitia ruat caelum: Let justice be done though the heavens fall." Or, as I have quoted Chief Justice Roberts:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

In any event, I am confused as to why the term "alien" appears to have become derogatory, at least in the minds of certain individuals. It is a descriptive term that has been used to describe individuals who are not citizens or nationals in American law at least as far back as 1798. I appreciate when I travel abroad that I am an "alien" (or whatever the local term is for someone who is not a citizen), and that I am obliged to follow the norms, customs, and (most importantly) laws of that country, not the United States; I take no offense, and understand that I may be treated differently than the citizens of the country in which I find myself.

In any event, Chief Justice Roberts' admonition brings me to my last point, as promised above, which is Justice Kavanaugh's statement: "The issue before us is entirely statutory and requires our interpretation of the strict 1996 illegal-immigration law passed by Congress and signed by President Clinton." The use of the word "strict" to describe a piece of legislation is a moral judgment that has no place in a judicial opinion. Would I use the word "lax" in describing the 1986 amnesty? As a pundit, yes; as a judge, no. Judges get to write opinions, not have them.

Josh Blackman, constitutional law professor at the South Texas College of Law in Houston, writing in The Atlantic, also focused on this line from Justice Kavanaugh's concurrence in a piece published on March 22, 2019:

Schoolhouse Rock, and the Constitution, teach that a bill becomes a law when the president signs it. Often the Supreme Court will explain that a given bill was signed by "the president." But on rare occasions, the justices will refer to the president by name. Does this SCOTUS name-dropping matter? If the Court merely notes which president was in office when Congress passed a specific bill, there is no problem. That fact, in the legal lingo, is merely descriptive. However, if the Court identifies the president to make a broader point — for example, that the bill was passed by a liberal or a conservative — there may indeed be a problem. The Court should resist the urge to wade, or even dip a toe, into partisan squabbles by naming the politicians responsible for legislation, unless, of course, those facts are necessary to resolve a given a case.

Professor Blackman asserted the implication of Justice Kavanagh's reference to President Clinton was to the following end: "The Court was not being 'strict' toward immigrants; a bipartisan Congress and Clinton were being 'strict' toward immigrants. In other words, don't blame us for interpreting the law in a tough fashion — even a Democrat was fine with it."

He concluded with a reference to Justice Kavanaugh:

The justices should be careful about naming politicians, especially when they name in order to make a point about the political process. Citing legislative history from members of Congress who supported or opposed a bill is completely justifiable; those statements were designed to inform the law's meaning. But it is generally a mistake to focus on the identity of the person whose only contribution was to sign the bill into law. Although this error does not violate any ethics rule, it's worth avoiding for the sake of keeping the Court as far away from politics as possible. Kavanaugh's reference to Clinton was right on the borderline.

Curiously, however, notwithstanding his point about the court avoiding politics, Blackman did not specifically opine on the wisdom of using the adjective "strict" at all, even though it goes to the heart of "mak[ing] a point about the political process." Judges often point to their role as "umpires" calling "balls and strikes" in a game in which they did not make the rules, the essence of Chief Justice Roberts' statement above.

Is a law "strict"? As a judge, if the law was clear and constitutional, I would not know and would not care. In the future, I hope that Justice Kavanaugh doesn't either.