Donald Trump, immigration, bail, ICE, US Supreme Court,

Detention Without End – in America

By Grace Lidia Suárez

The United States Supreme Court decided a case last week (Jennings v. Rodriguez) that deserves more than just a look. The 5 person majority, speaking through Justice Alito, held that persons facing deportation do not have a right to a bail hearing. Ever. That means, literally, they can be held forever.

The 3 person minority (Kagan did not participate) dissented.

The case was remanded to the Ninth Circuit to determine if the statute, as construed, violates the Constitution.

The first question people may ask is why the Circuit did not reach the constitutional question when it had the case before it. The answer lies in the doctrine of constitutional avoidance, the rule that says a court should avoid reaching constitutional questions if it can find non-constitutional grounds. Here, the Circuit in effect rewrote the statute to require a bail hearing every six months, and thus avoided reaching the constitutional question.

On that point, the majority held the Circuit was wrong,

Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alterna- tive that avoids those problems. But a court relying on that canon still must interpret the statute, not rewrite it. Because the Court of Appeals in this case adopted implau- sible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.

On the merits, the majority held that the statutes were clear on their face. They intended to leave the decision regarding release completely in the hands of the Attorney General.

I don’t think the majority opinion is necessarily wrong if one is a literalist. Let’s face it, that is what the statutes say. And the doctrine of constitutional avoidance does not allow a court to re-write a clear statute.

The dissent, however, presents a different worldview.

Justice Breyer, speaking for himself and Justices Ginsburg and Sotomayor, put the initial question thusly,

The noncitizens at issue are asylum seekers, persons who have finished serving a sentence of confinement (for a crime), or individuals who, while lacking a clear entitle­ ment to enter the United States, claim to meet the criteria for admission, …. The Government has held all the members of the groups before us in confinement for many months, sometimes for years, while it looks into or contests their claims. But ultimately many members of these groups win their claims and the Government allows them to enter or to remain in the United States. Does the statute require members of these groups to receive a bail hearing, after, say, six months of confinement, with the possibility of release on bail into the community provided that they do not pose a risk of flight or a threat to the community’s safety?

They go on to say,

The Court reads the statute as forbidding bail, hence forbidding a bail hearing, for these individuals. In my view, the majority’s interpretation of the statute would likely render the statute unconstitutional. Thus, I would follow this Court’s longstanding practice of construing a statute “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). And I would interpret the statute as requiring bail hearings, presumptively after six months of confinement.

In other words, the dissent agrees with the Ninth Circuit.

Justice Breyer ends by saying,

The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation.

I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.

The plaintiffs will probably prevail in the Circuit. What the high court will do when faced with the case again is anybody’s guess.

The statutes predate the Trump administration but I’m sure Trump’s ICE will be using them to keep people imprisoned for years. This is a dream decision for Trump.

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