In different times, news of the Court's due process-denying decision in Jennings v. Rodriguez would have gotten wide attention on front pages and home pages of major newspapers. But, as the Washington Post columnist Ruth Marcus aptly pointed out in noting the back-page coverage of the ruling, "the Trump administration's soap opera occupies so much media attention that other matters of enormous importance go unremarked."
The 5-3 decision on Feb. 27 pitted the Court's five Republican-appointed conservatives, including the moderate justice Anthony M. Kennedy, against three Democratic-appointed liberals, with one of their number — Elena Kagan — recused because of her previous role as U.S. solicitor general. The decision says less about partisan politics, however, than about the divide on the Court between the sterile textualism of the conservatives and the liberal justices' whole-law approach to reading statutes.
The federal immigration statutes at issue in the case provide in stark language that certain aliens "shall be detained" at the border upon seeking admission into the United States, including those applying for asylum as they flee persecution in their home countries. A separate provision provides that aliens already in the United States "shall be detained" as the government seeks to deport them based on prior criminal convictions or terrorism-related connections.
Writing for the majority, Justice Samuel A. Alito Jr. needed to know nothing more. The laws say nothing about bail hearings: end of case. But the federal appeals court in California invoked a well-recognized doctrine known as "constitutional avoidance" in concluding that the laws would be unconstitutional unless they were construed to provide for bail hearings.
For the liberal dissenters, Justice Stephen G. Breyer felt so strongly about the case that he exercised the occasionally invoked prerogative to summarize his dissent from the bench. His 33-page written opinion, longer than Alito's for the majority, details the humanitarian wreckage and legal injury that the decision inflicts.
The right to bail, Breyer emphasized, has been part of Anglo-American law ever since the 18th century English jurist Blackstone recognized the opportunity for bail "in any case whatsoever." The Bill of Rights prohibits "excessive bail" in the Eighth Amendment: no bail whatsoever seems worse. Breyer also stressed that federal and state law uniformly allow bail for criminal defendants except in limited circumstances. No evidence suggests that the risk of flight is greater for aliens trying to enter the country than for criminal suspects, Breyer remarked.
Most of the aliens held at the border have done nothing wrong, Breyer explained. The asylum applicants — they numbered 7,500 in 2015 — have already provided preliminary information to support their claim to a U.S. consular official in their home countries. Two-thirds of them eventually receive asylum, but only after detentions in facilities within the United States that can last a year or even, in one case, two-and-a-half years.
Others detained at the border are held in limbo because they are neither admissible or inadmissible without further investigation. Breyer had no data on their numbers or the lengths of their detentions, but one can assume that they too lingered and languished in what Breyer called "inappropriately poor" conditions as the immigration system's wheels ground slowly.
The third group in the class action consisted of immigrants living in the United States facing deportation because of criminal convictions or possible ties to terrorism. The ex-offenders, Breyer explained, had already served their sentences: more than half of them for less than six months. Many of them are found to be deportable, but 40 percent of them are eventually granted relief from removal. In the meantime, however, they too are detained for periods that range up to and past a full year and, in one case, for nearly four years.
None of these disquieting details can be found in the majority opinion. In Scaliaesque fashion, the five justices see nothing beyond a few words in the statutory text: "shall be detained." They look for words, not meaning; law, not justice. Congress, quite simply, could not have meant to deny the chance for bail to immigrants held for months or even years with no chance whatsoever to make their case for release before a judge required to give their plea due consideration.
A statute with that effect offends the words of the Constitution--for example, the Fifth Amendment's prohibition against deprivations of liberty without due process of law. Rather than read the statute with the tunnel vision of a lexicographer, Breyer and the other dissenters would read it as requiring periodic bail hearings "without doing violence to the statutory language or to the provisions' basic purposes."
Inside this clouded decision, however, there is a silver lining. The plaintiffs' constitutional claims have not yet been decided. The federal appeals court skirted the question by construing the statutes to avoid finding them unconstitutional.
The majority express no view on the issue in sending the case back to the Ninth Circuit for a ruling. Breyer and his colleagues were ready to decide the issue now. Instead, Breyer closes by citing the Declaration of Independence's "unalienable" right to liberty in hoping for an eventual ruling to grant "the basic right to bail" for thousands of aliens yearning for nothing more than to breathe free.
Your "silver lining" I think negates all of your criticisms, though. The Constitutional claims are not before the court, so invalidating the statute because it doesn't require bail hearings can and probably will still happen, but the case was not in the right posture to do that.
ReplyDeleteGranted, the Court has looked past which question was specifically asked before and decided more than asked, but faulting the Court for that in this case seems wrong.
To be quite frank I agreed with the majority in this case because the Constitution can surely require that bail be provided, but it can't possibly be read to require anything beyond that, much less bail hearings every 6 months and definitely not an entirely new obligation for the government to prove by clear and convincing evidence that it's necessary to detain them, a protection found NOWHERE, even in criminal law. Sotomayor even concurred with that part of the opinion.
I don't think all but the most liberal of "whole-law" views can stretch that far. There are decent arguments for reading beyond certain statutes to reach plain, Constitutional meanings, but the lower court's ruling in this case was, quite frankly, absurd given the text of the statute and the Constitution. The statute is likely unconstitutional, but that question wasn't before the Court. What's happening is unjust, but if the lower court hadn't tried the dodgy legal strategy it employed, I have a feeling the case would come out the other way on Constitutional grounds.