Mellouli v. Lynch drug paraphernalia case: Kansas’ law can’t deport legal resident.

The Supreme Court’s Logical, Humane Ruling for a Man Who Hid Drugs in His Sock

The Supreme Court’s Logical, Humane Ruling for a Man Who Hid Drugs in His Sock

The law, lawyers, and the court.
June 2 2015 11:22 AM

Your Socks Can No Longer Get You Deported

The Supreme Court’s logical, humane decision.

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These socks are a deportation risk no more.

Photo by Kevin C. Moore/Getty Images

Moones Mellouli made a lot of mistakes. On April 4, 2010, Mellouli—a native of Tunisia and a lawful permanent resident living in Kansas—got into his car drunk and with a suspended license, and he hit the road. Then he got caught by a cop and hauled into jail. While locking up Mellouli, the police found four orange tablets in his sock. Mellouli quickly admitted the pills were Adderall, a controlled substance for which he had no prescription. Ultimately, Mellouli pleaded guilty to a very minor charge: possessing drug paraphernalia in violation of Kansas law.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

But it turns out that pleading down to this lesser offense was Mellouli’s biggest mistake of all. Two years after his conviction, the United States government attempted to deport him—not for driving drunk or possessing illegal drugs, but for carrying those drugs in his sock.

On Monday, the Supreme Court reversed the government’s efforts to deport Mellouli in a lopsided 7-2 ruling. The ruling is a progressive victory in pretty much every sense, marking a triumph for legal immigrants over draconian state statutes, overzealous prosecutors, and aggressive deportation policies. Mellouli v. Lynch may not be one of this term’s blockbuster cases, but it’s a heartening reminder that, when politics don’t get in the way, this court can still apply the law in a logical and humane way.

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At the core of Mellouli was a simple issue. Federal law permits the deportation of immigrants who violate any state law “relating to” a drug regulated by the federal government. Mellouli was convicted of possessing drug paraphernalia—but not for possessing an illegal drug. Can the United States government deport an immigrant for violating a state paraphernalia law, even when his conviction makes no mention of a drug outlawed by the feds?

The Board of Immigrations Appeals, which makes many of the rules for immigration courts, had previously answered this question with a resounding yes. According to the BIA, state paraphernalia statutes related to “the drug trade in general,” and any immigrant who violated them could be deported. It didn’t matter if the immigrant wasn’t convicted for actually possessing a drug. So long as he was guilty of possessing paraphernalia, he could be removed from the United States.

There are two problems with this logic. The first is that many states’ paraphernalia statutes—including Kansas’—are ridiculously broad. In Kansas, “materials of any kind which are used” in “storing” or “containing” drugs qualify as paraphernalia. Under federal law, on the other hand, possessing paraphernalia isn’t a crime at all. It seems fundamentally wrong to let states pass stringent, sweeping paraphernalia laws utterly at odds with the federal statute—then use the power of the federal government to deport any immigrant who violates those laws.

The second, more galling problem with this logic is that it doesn’t require a connection between the paraphernalia conviction and a federally regulated substance. That’s a curious detail for the BIA to overlook, because the connection to federally regulated drugs is at the heart of the deportation statute. Congress was interested in deporting immigrants who violated laws “relating to” federally regulated drugs. By rewriting the law, the BIA explicitly gave the government free rein to deport immigrants without proving that their crimes related to some federally controlled drug.

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This distinction is important, because many states outlaw drugs that the federal government doesn’t. For instance, Kansas outlaws salvia, a psychoactive plant that produces hallucinations. The federal government doesn’t care about salvia. Under the BIA’s ruling, an immigrant who was caught with a pipe filled with salvia could not be deported if she was convicted of possessing salvia—a serious felony offense in Kansas. If, however, she was convicted of possessing paraphernalia—a minor misdemeanor offense in Kansas—she could be deported. Few immigrants would suspect that, by pleading down to a lesser charge, they could accidentally subject themselves to swift removal from America.

In Mellouli, the Supreme Court held that this preposterous system, which an immigration judge cited in approving Mellouli’s deportation, had no mooring in federal law. Justice Ruth Bader Ginsburg firmly rejected the BIA’s “sweeping interpretation” of the federal statute. Even Justice Antonin Scalia—who hates drugs so much he’ll abandon his support of states’ rights to keep them illegal—joined her opinion. For the seven justices in the majority, Kansas’ ability to put Mellouli on the road to deportation for using a sock as “paraphernalia” was unjust, if not absurd. Under the court’s new rule, immigrants can be deported only if the government can connect their convictions to drugs criminalized by the feds.

But to Justices Clarence Thomas and Samuel Alito—who have lately been willing to stretch both facts and law to fit their conservative activism—Mellouli’s deportation is entirely lawful. In an obnoxious dissent, the justices reach this conclusion by essentially replacing the text of the law with their own obsession with states’ rights. “I see nothing absurd,” Thomas writes, “about removing individuals who are unwilling to respect the drug laws” of their states. Nothing absurd—except that Congress did not give the government authority to do it.

Thomas throws a snide, bitter gibe at the majority for siding with Mellouli—who holds two masters’ degrees, taught at a university, and is now engaged to an American citizen. “I fail to understand” why the court ruled for Mellouli, Thomas continues, “apart from a gut instinct that an educated professional engaged to an American citizen should not be removed for concealing unspecified orange tablets in his sock.” Thomas is bluntly accusing his colleagues of classism (or worse), implying that, had Mellouli been poor and uneducated, the court would have rejected his claim.

At this point, it’s fruitless to dwell on the petty churlishness of these two extremists. The important takeaway from Mellouli isn’t that Thomas and Alito remain rude and reactionary but that a majority of the court is able to interpret immigration law impartially, even when political ramifications lurk beneath the surface. Just before the justices handed down Mellouli, a lower court succumbed to Republicans’ transparently political lawsuit against President Barack Obama’s latest immigration reform efforts. That court stretched the law like Silly Putty to ensure that peaceful undocumented immigrants receive no relief from the threat of deportation. In Mellouli, the Supreme Court declined to engage in such partisan judicial antics. Let’s hope the justices remain on good behavior when the next blockbuster immigration case inevitably lands on their docket.