Last week the Supreme Court issued an unusual order in a pending immigration case that could foreshadow a key constitutional ruling and in doing so limit President-Elect Trump’s powers to detain certain noncitizens who may be eligible to be removed from the country. The ruling is in regards to a class-action challenge (Jennings v. Rodriguez) brought by the American Civil Liberties Union (ACLU) on behalf of thousands of immigrants, many of whom are in the US legally but who have been detained without an opportunity for a bond hearing in front of a judge to possibly obtain release. US federal law grants immigration authorities broad discretion to detain foreign-born individuals if they are apprehended at the border or have criminal backgrounds. The Supreme Court’s task in this case is to “determine what limits, if any, exist for that grant of authority.”
The justices appeared divided over how to rule, and the new order requests that lawyers for the federal government and the ACLU file a new round of legal briefs addressing whether the Constitution would require a “hearing in front of a judge―or even a release, if the government fails to present strong enough evidence that the person shouldn’t be released―if a detention lasted six months.” The lead plaintiff in the case is Alejandro Rodriguez who was detained for three years without a hearing even though he was a lawful permanent resident. He was facing removal over two minor offenses, a drug charge and joyriding as a teenager.
The ACLU explains the consequences of long-term detainment for noncitizens:
Without a bond hearing, people…may spend years behind bars in a prison jumpsuit, shackled for visits with loved ones, subjected to strip searches and solitary confinement, and referred to by guards as a number. They may suffer separation from family members, often across state lines; see their children placed in foster care; and lose jobs, savings, homes, and businesses. About 73 percent of immigration detainees are held in private prisons, which have a grisly track record of deaths due to medical neglect, suicides, and sexual abuse.
At the case’s oral arguments in November, the Supreme Court’s more conservative members appeared to be opting for a narrower ruling based on current immigration law and a prior appeals ruling in favor of the detainees. “We do not have the constitutional issue before us,” Justice Anthony Kennedy told Ahilan Arulanantham, the ACLU lawyer who argued the case. Justice Kennedy authored a concurring opinion in an earlier immigration case that upheld only brief detentions without due process.
With the additional request, the Huffington Post notes, the “justices may be signaling a desire to not split 4-to-4 in a case that could directly implicate the authority of the incoming Trump administration in an area that was a linchpin in the president-elect’s campaign.”
“I think it’s really hard to read the tea leaves here,” Arulanantham tells the Huffington Post. He adds that the justices’ request last Thursday indicates “the court wasn’t yet satisfied with either party’s position.”