Gorsuch Allies With Sotomayor To Denounce Trump Administration’s Prosecutions of Illegal Immigrant

The uniting of Justices Neil Gorsuch and Sonia Sotomayor to denounce as double jeopardy the Trump Administration’s prosecutions of an illegal immigrant is a newsworthy moment at the dawn of the Supreme Court’s new term.Justices Sotomayor, an appointee of President Obama, and Justice Gorsuch, an appointee of President Trump, are hardly ideological fellow travelers. That they joined to question the government’s treatment of a Mexican national, Jesus Herrera-Salazar, underscores the seriousness of the underlying constitutional stakes.Justices Gorsuch and Sotomayor agreed with their seven other colleagues that the high court ought not to take Herrera-Salazar’s petition, because he is no longer in the country. However, they joined in a separate opinion, formally called a statement, “respecting the denial of certiorari.” The Nine use that genre to identify constitutional concerns that exceed the bounds of the case at hand and to instruct lower courts. Herrera-Salazar’s case took a tangled path to the high bench. The Constitution’s Fifth Amendment ordains that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Herrera-Salazar contends that the government trespassed on that prohibition.Herrera-Salazar was first deported in 2015. He was then returned to America and was indicted on one count of being “found in” the United States following removal, to which he pleaded guilty and served imprisonment.Following Herrera-Salazar’s time in prison he was put on supervised release. One condition of that release was that he was expressly instructed not to leave the Eastern District of Oklahoma. In 2021 Herrera-Salazar was pulled over in a traffic stop at Heavener, Oklahoma. He was again arrested and indicted on the same charge of being illegally “found” in America. He was convicted by a jury and sentenced to a new prison term. Justice Sonia Sotomayor at Madrid’s Zarzuela Palace on March 4, 2024. Pablo Cuadra/Getty ImagesThe government argued that Herrera-Salazar’s treatment did not amount to double jeopardy but was instead two separate violations of the same crime. The defendant alleged double jeopardy, the remedy for which is immediate dismissal of all charges with prejudice, meaning that they cannot be refiled. The trial judge agreed with the Department of Justice, as did the 10th United States Appeals Circuit. The circuit found that the “allowable unit of prosecution” did not require a second unlawful reentry. Justices Sotomayor and Gorsuch, though, mark “serious constitutional problems that plague the government’s treatment of Herrera-Salazar.” Justice Sotomayor glosses that “from the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson’s choice. In the Government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law.”Justice Sotomayor reasons that the government’s logic would mandate that with a single unlawful reentry supplying the necessary statutory predicate, a person in Herrera-Salazar’s shoes can be subjected to repeated, limitless ‘found in’ charges without offending the Constitution.” She and Justice Gorsuch, usually on opposing sides of the high bench, concur that the prohibition on Double Jeopardy is not “such a fragile guarantee” that prosecutors can evade it by dividing a single crime into multiple ones.Jesus Herrera-Salazar v. United States is not the first time that Justice Gorsuch has emerged as a champion of the Double Jeopardy Clause. Nor is it the first time he has been willing to partner with a liberal colleague to defend it. In Gamble v. United States, from 2019, the Coloradoan, along with Justice Ruth Bader Ginsburg, were the only two dissenters in a case that serves as a landmark limitation on the ability of defendants to invoke Double Jeopardy.Gamble percolated to the Supreme Court after one Terance Martez Gamble was prosecuted under both state and federal law for possessing a gun while being a felon. The court’s majority ruled that because state and federal governments are “separate sovereigns,” the Double Jeopardy Clause does not apply. Justice Alito’s majority opinion reasons that just as the “killing of an American abroad is a federal offense that can be prosecuted in our courts,” so too Gamble could be prosecuted by both state and federal authorities. Justice Alito adds that “The United States is a federal republic; it is not, contrary to JUSTICE GORSUCH’s suggestion, a unitary state like the United Kingdom.” He reasons that “while our system of federalism is fundamental to the protection of liberty, it does not always maximize individual liberty at the expense of other interests.” Justice Gorsuch wrote in dissent that when “governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial, who suffer first — and there is nothing to stop them from being the last.” In language that Justice Alito terms “extraordinary,” Justice Gorsuch writes that the double prosecution of Gamble is a “desecration” of federalism.Justice Ginsburg backs up that argument by arguing that the “notion that the Federal Government and the States are separate sovereigns overlooks a basic tenet of our federal system” — that, to quote Alexander Hamilton in 82 Federalist, “Different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense.”

Gorsuch Allies With Sotomayor To Denounce Trump Administration’s Prosecutions of Illegal Immigrant

Gorsuch Allies With Sotomayor To Denounce Trump Administration’s Prosecutions of Illegal Immigrant

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