Volume 34
Issue 1
Spring '20

The Strange and Unexpected Afterlife of Pereira v. Sessions

Written By: Patrick J. Glenn & Alanna R. Kennedy


Decisions by the United States Supreme Court are sometimes one-off affairs, resolving a specific issue that definitively settles the law on that point going forward. Sometimes the Court tells us this is the case, for instance, lim-iting its reasoning to the decision at hand.1 Other times, the nature of the issue clearly demonstrates it is of limited or no prospective importance outside the narrow context in which it was issued. Alternatively, an initial decision by the Court will set off a flurry of activ-ity, bouncing an issue between the Supreme Court and the courts of appeals. This may be necessary to resolve different interpretive facets of a single stat-utory provision. For example, the Court’s decision in Moncrieffe v. Holder, which concerned the aggravated felony drug trafficking provision in the Immigration and Nationality Act (“INA”),3 concluded a seven-year span of Supreme Court litigation entailing three separate decisions.4 Or it may be to resolve how an ostensibly definitive interpretation applies upon different practical applications, including how to apply the Armed Career Criminal Act’s “residual clause” to a range of different predicate offenses.5 And of course that enterprise itself ended with a definitive judgment, of sorts, with the Supreme Court finally holding that “residual clause” to be unconstitution-ally vague,6 igniting a chain of vagueness litigation centered on other simi-
larly worded provisions in the federal statutes. The Supreme Court’s recent decision in Pereira v. Sessions seemed like a case destined for the former category of narrow, limited holdings.8 The issue

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