Justices Highlight Constitutional Concerns
In a recent Supreme Court decision, Justices Sonia Sotomayor and Neil Gorsuch issued a joint note expressing alarm over the constitutional implications of a federal immigration case, Jesus Herrera-Salazar v. United States. While the Court ultimately declined to hear the case because it had become moot following the petitioner’s removal from the country, the two justices warned that the government’s legal strategy raised “serious constitutional problems” regarding the Fifth Amendment’s Double Jeopardy Clause.
The Case of Jesus Herrera-Salazar
The petitioner, Jesus Herrera-Salazar, was initially indicted in 2020 for being “found in” the United States after a previous removal, a federal offense for which he served a prison sentence. Following his release, he was ordered to remain in the Eastern District of Oklahoma under federal supervision. While restricted to that location, he was stopped for a traffic violation and subsequently charged a second time for being unlawfully “found in” the United States.
Herrera-Salazar argued that this second prosecution violated the Double Jeopardy Clause, which prohibits being prosecuted twice for the same offense. The Tenth Circuit Court of Appeals rejected this argument, determining that the two prosecutions could be treated as separate offenses under immigration law. However, Sotomayor and Gorsuch noted that because Herrera-Salazar had not left the country and reentered between the two charges, the government’s interpretation was “difficult to square” with the Constitution.
Warnings Against “Constitutional Absurdity”
The government contended that the two charges represented distinct violations because Herrera-Salazar was “found in” the U.S. in 2020 and later “found in” Oklahoma. Prosecutors further argued that ruling in favor of the defendant could grant individuals immunity from future punishment unless they were removed and reentered the country.
Sotomayor and Gorsuch rejected this logic, citing Brown v. Ohio, which established that prosecutors cannot circumvent constitutional protections by dividing a single crime into multiple units. The justices also pointed out the “no-win” situation created by the government’s requirements, noting that Herrera-Salazar was effectively penalized for remaining in the district where he was ordered to stay. The justices urged future courts to avoid such “constitutional absurdity” and to ensure the Double Jeopardy Clause is given its “full weight and meaning.”