Supreme Court Sets the Stage for a More Important Immigrant Detention Fight

The Supreme Court ruled this week that current law does not entitle suspected illegal immigrants going through deportation proceedings to challenge their detention. The good news is that its ruling leaves the door open to finding the statute that created this situation unconstitutional.

The opinion in Jennings v. Rodriguez resolves a government challenge to a lower court ruling, which ordered immigration authorities to hold a bail hearing for such detainees every six months. For the moment that leaves the prisoners without a procedure to challenge their long-term detention.

The statute at issue in the case is a portion of federal immigration law that says aliens who are contesting a deportation order or a determination of inadmissibility “shall be detained” pending resolution of their status. The law says such detainees may be temporarily released into the United States while their cases are processed in the immigration courts, at the discretion of the attorney general.

The case was brought by Alejandro Rodriguez, a Mexican citizen who was ordered deported in 2004 following a drug conviction and was then detained for several years as his appeals proceded. He filed a suit for habeas corpus in federal court in California, arguing that the statute implicitly required the government to conduct detention hearings every six months, although the text itself says nothing about such hearings. District Judge Terry Hatter agreed, and the government appealed his injunction to the Ninth Circuit, which upheld Hatter’s ruling as an appropriate application of the canon of constitutional avoidance—a legal doctrine which instructs courts not to interpret ambiguous statutes in ways which would make them unconstitutional.

The Supreme Court rejected this analysis. Writing for a 5–3 majority—Justice Elena Kagan recused herself from the case—Justice Samuel Alito cited a previous ruling that the canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Alito deemed the Court of Appeals’ interpretations of the statute “implausible,” and he concluded that the lower courts will have have to consider the constitutional question they tried so hard to avoid.

The ruling therefore tees up the question of the statute’s constitutionality—the very issue the lower courts went to such pains to ignore. So while the short-term effect is bad for civil liberties, it’s possible that the case will ultimately lead to a verdict that civil libertarians will like: that indefinite civil detention of suspected illegal immigrants violates constitutional rights.

It’s conceivable a lower court, or even the Supremes themselves, could later rule that the statute is constitutional after all. But courts have been generally unfriendly to indefinite detentions in the past, even in the context of other areas that fall under executive discretion, such as national security. Furthermore, every lower court that considered the case agreed that reading the law to mean what it clearly says (that suspected illegal immigrants “shall be detained” during their appeals, regardless of how long those appeals take, and that parole is entirely at the discretion of the attorney general) would pose “serious constitutional concerns,” which is why they didn’t want to read it that way.

The crucial point is that so far, no court has actually ruled on the constitutionality of the indefinite, unreviewable detentions that the immigrations statutes authorize. All the Supreme Court really said on Tuesday was that the statute does, in fact, authorize them.

Despite this, several major media outlets portrayed the ruling as simply a blow against immigrants’ rights. “Supreme Court Curbs Rights of Immigrants Awaiting Deportation,” proclaimed a Reuters headline. “Supreme Court throws out ruling that said detained immigrants deserve bond hearings,” said the Chicago Tribune.

But the case isn’t really about what anyone “deserves,” in any abstract sense. Litigation rarely is.