Ellingburg v. United States · ¶67

This understanding of Calder harmonizes the Ex Post Facto Clauses with their historical purpose. It means that the Clauses ensure fair notice against government enforcement actions, regardless of whether the legislature labels them civil. As JUSTICE GORSUCH has explained, today’s “civil” laws “regularly impose penalties far more severe than those found in many criminal statutes.” Sessions v. Dimaya, 584 U. S. 148, 184 (2018) (opinion concurring in part and concurring in the judgment). “Today’s ‘civil’ penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.’” Ibid. This understanding also helps reconcile Calder with its critics, many of whom have focused on the injustice of allowing the…

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