In a stunning display of judicial unity that cuts across ideological lines, Supreme Court Justices Neil Gorsuch and Sonia Sotomayor issued a rare joint statement Tuesday blasting federal prosecutors for what they called a "constitutional absurdity" in the handling of an illegal immigrant's case — a case that originated under the Biden Department of Justice.
The case involves Jesus Herrera-Salazar, a Mexican national who was convicted in 2020 of illegally reentering the United States after being found in Texas. As part of his original sentence, Herrera-Salazar was prohibited from leaving the United States and was placed under federal supervision in the Eastern District of Oklahoma, according to court records cited by Fox News Politics and The Hill.
Here's where the government's case went off the rails: After his release, Herrera-Salazar complied with the terms of his supervised release — including the explicit instruction not to leave the Eastern District of Oklahoma. In April 2022, he was stopped by police in Heavener, Oklahoma. Federal prosecutors, rather than recognizing that he had done exactly what he was ordered to do, charged him AGAIN with being illegally present in the United States.
The problem? He never left the country between the two prosecutions. As Sotomayor noted in her statement, Herrera-Salazar "was expressly instructed not to leave the Eastern District of Oklahoma" during his supervised release. The government essentially punished him for following its own orders.
"After being once convicted and punished for being found in the United States and, as part of his original sentence, prohibited from leaving the United States, Herrera-Salazar was convicted and punished for being found in the United States a second time," Sotomayor wrote, joined by Gorsuch.
The Tenth Circuit Court of Appeals had previously rejected Herrera-Salazar's double jeopardy argument, treating the two convictions as separate offenses. But Sotomayor and Gorsuch weren't buying that logic.
"When a defendant is convicted of a crime that involves continuous, uninterrupted conduct, our precedents and the logic of the Double Jeopardy Clause strongly suggest that the Government is barred from charging that defendant with the same continuous crime for a second time simply by focusing on a different time marker," Sotomayor wrote.
She described Herrera-Salazar's situation as a "Hobson's choice" — a take-it-or-leave-it scenario where only one option is actually available. He could either remain in the country as ordered and face re-prosecution, or violate his supervised release by leaving and face additional charges. Either way, the government had him trapped.
The Supreme Court declined to hear Herrera-Salazar's appeal, leaving his convictions intact. But the written statement from Sotomayor and Gorsuch is a warning shot — not just to the lower courts, but to federal prosecutors who stretch the law beyond constitutional limits.
"Should circumstances like these arise again, I encourage courts to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning," Sotomayor concluded.
According to The Hill, Herrera-Salazar served both sentences and was deported in 2024.
The case highlights a broader pattern of overreach by federal agencies during the Biden administration. The DOJ, under Attorney General Merrick Garland, repeatedly pursued aggressive prosecutions that legal experts warned pushed constitutional boundaries. While the Trump administration has made clear that illegal immigration will be enforced and borders secured, the rule of law must still be followed — even when dealing with those who have violated it.
The Gorsuch-Sotomayor alliance is notable precisely because it is so rare. Gorsuch, a Trump appointee known for his textualist approach and skepticism of government overreach, found common ground with Sotomayor, an Obama appointee and one of the court's most liberal members. Their agreement here signals that the Constitution's protections against double jeopardy are not a partisan issue — they are a fundamental safeguard against a government that would punish the same person twice for the same act.
Legal observers have noted that the case raises troubling questions about how federal prosecutors interpret immigration law. If a person is ordered to remain in the country, how can the government then charge him with a crime for doing exactly that? The Tenth Circuit's decision to uphold the second conviction is now under scrutiny, and the Supreme Court's refusal to hear the case leaves the legal question unresolved for now.
Our Take
Let's be clear about what happened here: The Biden DOJ prosecuted a man twice for the same crime — after ordering him to stay put. That's not just legal overreach; it's government incompetence at its worst, wrapped in a layer of constitutional violation.
We at Next News Network have been saying it for years: The administrative state has grown too powerful, too unaccountable, and too willing to twist the law to score political points. This case is Exhibit A. Federal prosecutors, likely eager to rack up deportation numbers or appease their overseers, ignored the most basic protections in the Fifth Amendment. Gorsuch and Sotomayor — two justices who agree on almost nothing — both saw it.
This is exactly why President Trump's second term is so critical. We need an administration that enforces our immigration laws vigorously but also respects the Constitution. We need a DOJ that follows the law, not one that invents new ways to punish people for following its own orders.
So here's a question for every patriot: If the federal government will do this to an illegal immigrant, what makes you think they won't do it to you? The answer is nothing. That's why we fight for constitutional limits every single day. Stay vigilant, stay informed, and hold every bureaucrat accountable. The Swamp doesn't drain itself.
