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The Supreme Court quietly denied review in the Herrera‑Salazar case, but the real news came from a short, sharp statement by Justice Sonia Sotomayor — joined unusually by Justice Neil Gorsuch — warning that the government’s theory allowing repeated prosecutions for the same continuous illegal‑presence conduct creates a “constitutional absurdity.” That rare bipartisan jab at the Justice Department demands attention from lower courts, federal defenders, and anyone who cares whether the Constitution actually means what it says.
The holding the Court refused to take — and why it matters
At the center is 8 U.S.C. §1326, the statute criminalizing illegal reentry or being “found in” the United States after removal. The facts are straightforward: Jesus Herrera‑Salazar was prosecuted, convicted, and sentenced once after Border Patrol encountered him in Texas. While on supervised release and expressly told not to leave a particular district, he was later stopped in Oklahoma and prosecuted again under the same statute. The Tenth Circuit upheld the second conviction. The Supreme Court declined to hear the appeal, but Sotomayor — with Gorsuch — used the denial to flag a real legal problem.
Double jeopardy and a “constitutional absurdity”
Justice Sotomayor called the government’s approach a “constitutional absurdity,” noting that when criminal conduct is continuous and uninterrupted, the Double Jeopardy Clause should bar a second prosecution simply because officials pick a different time or place marker later. Her statement urged lower courts to “give the Double Jeopardy Clause its full weight and meaning.” That language matters. Even though a cert denial is not a new Supreme Court ruling, a joint Sotomayor‑Gorsuch admonition is a loud signal to judges and prosecutors that the current practice risks trampling basic constitutional protections.
Practical stakes: this isn’t about one case
This is not an abstract fight. Thousands of §1326 prosecutions are brought every year. If the government’s theory stands, an individual could be convicted repeatedly for one continuous act of unlawful presence just because agents “find” them at different times or places. That creates perverse incentives: more prosecutions, more re‑sentencing, and a heavier burden on courts — all while raising real double jeopardy concerns. Federal prosecutors and the Department of Justice should rethink a practice that courts now have been warned might read the Constitution out of existence in this context.
What comes next and why conservatives should care
Lower courts will now have Sotomayor’s words — and Gorsuch’s imprimatur — to consider. Defense lawyers will cite the statement in future briefs, and the issue will keep popping up across the circuits. Conservatives who believe in limited government and rule‑of‑law should welcome a reminder that constitutional limits apply even to unpopular defendants. If the Justice Department wants to avoid messy corrections down the road, it should stop treating statutes and the Bill of Rights as optional tools for winning convictions and start respecting the legal limits that keep government power in check.
In short: the Supreme Court may have declined to take Herrera‑Salazar’s appeal, but the message from Sotomayor and Gorsuch is clear — prosecutors should not be able to manufacture fresh convictions out of continuous conduct. It’s a small rebuke with big implications. Lower courts would do well to listen before the Justice Department turns a convenient theory into a permanent, unconstitutional practice.
