Conservative Supreme Court Justice Neil Gorsuch and liberal Justice Sonia Sotomayor have expressed concerns regarding the federal government's prosecution of an illegal immigrant, marking a notable collaboration between the two justices. Gorsuch, appointed by President Donald Trump, and Sotomayor, appointed by former President Barack Obama, questioned the decision to prosecute a Mexican national, Jesus Herrera-Salazar, who faced charges for being unlawfully present in the United States after a previous conviction.
On Tuesday, the Supreme Court declined to hear an appeal from Herrera-Salazar, who argued that his second prosecution violated the Fifth Amendment's protection against double jeopardy. Although the Court chose not to take up the case, Sotomayor issued a separate statement, joined by Gorsuch, highlighting serious constitutional issues with the government's actions.
Sotomayor stated, "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."
The justices questioned how the government could penalize someone for remaining in the country when it had effectively prohibited him from leaving. They described the situation as a "constitutional absurdity." This collaboration is significant given their differing judicial philosophies, although it is not the first instance of them finding common ground on constitutional protections against government actions.
In previous cases, Gorsuch and Sotomayor have also raised concerns about the government's treatment of individuals in relation to property damage during police operations and warrantless misdemeanor arrests. In this latest case, Herrera-Salazar was indicted in 2020 for being found in the U.S. after deportation, a violation of federal immigration law. He pleaded guilty, served a prison sentence, and was placed on supervised release with restrictions on leaving the Eastern District of Oklahoma.
While under these restrictions, he was charged again under the same federal immigration statute. The U.S. Court of Appeals for the 10th Circuit rejected his double-jeopardy argument, stating that the offense is completed upon discovery of unlawful presence, allowing for separate prosecutions.
Sotomayor and Gorsuch challenged this reasoning, citing Supreme Court precedent that protects against double jeopardy. They emphasized that the government could not repeatedly prosecute someone for remaining in the U.S. without evidence of a separate unlawful reentry. Sotomayor warned that under the government's interpretation, prosecutors could theoretically charge Herrera-Salazar for each day he remained imprisoned after his first conviction.
The justices issued their statement despite agreeing with the Court's decision not to review the case, expressing hope that similar circumstances would not arise in the future. Their statement was formally known as a statement "respecting the denial of certiorari," aimed at identifying constitutional concerns and urging lower courts to avoid similar issues.
This collaboration follows earlier cases where Sotomayor authored statements joined by Gorsuch after the Supreme Court declined to review. In one case, they questioned whether the government could impose financial burdens on homeowners for property damage during police operations without compensation. In another, they examined the legality of warrantless misdemeanor arrests. Fox News Digital reached out to the Supreme Court chambers for comment but did not receive a response by publication time.