The Supreme Court began on Wednesday hearing a case that could dramatically affect President-elect Trump’s policy on immigration, just as Trump prepares to undo President Obama’s immigration actions after Inauguration Day.
The court heard oral arguments in Jennings v. Rodriguez, an immigration case from the Ninth Circuit Court of Appeals that ruled detained illegal immigrants — including those with criminal records — are entitled to bond hearings with the possibility of release.
Statements and questions from the court’s left-leaning justices on Wednesday indicated they may be eager to interpret the immigration statutes at issue in Jennings or implant new constitutional limitations regarding detention and deportation proceedings before Trump ever takes office.
The court’s left and right-leaning blocs locked horns over whether adjudication of the class-action case involved a question of constitutionality or statutory interpretation. Chief Justice John Roberts noted that the court does not have a role in writing or rewriting statutes, while Justice Elena Kagan insisted that the court need not create a statute if it chooses to introduce a constitutional limit.
Longtime detainees fighting deportation proceedings brought the class-action suit and were represented at the court by the American Civil Liberties Union’s Ahilan Arulanatham.
Alejandro Rodriguez, the named plaintiff, was a lawful permanent resident of the U.S. who entered the country as an infant. His conviction for drug possession and an earlier conviction for joyriding prompted the Department of Homeland Security to initiate deportation proceedings against him, which included detaining him for three years. The average detention of members of the class-action suit was 13 months.
While Arulanatham sought a verdict allowing such individuals to be entitled to bond hearings, his reasoning was battered by the court’s conservatives. Asked by Justice Samuel Alito whether Arulanatham intended to argue the case on the basis of immigration statutes or the constitution, Arulanatham answered both.
Alito told Arulanatham, “[O]n the language of the statute you have a pretty tough argument,” but the ACLU attorney continued to avoid arguing his case solely on constitutional — and not statutory — grounds.
Roberts echoed Alito and noted that the high court does not have a role in writing or rewriting a statute and zinged the Ninth Circuit’s judgment for “maybe” lacking the “courage of their convictions” in its failure to fully address the contentious constitutionality question.
Kagan swiftly rushed to Arulanatham’s side, however, insisting an argument could be: “We’re not making up a statute, we’re deciding a constitutional limit.”
Acting U.S. Solicitor General Ian Gershengorn made a largely statutory argument in opposition to Arulanatham, and suggested that illegal immigrants seeking discretionary relief caused lengthy detention periods just as much as the immigration judges.
“If the government is moving reasonably to accomplish removal … absent very unusual circumstances, that detention is constitutional,” Gershengorn said.
The lasting result of the court’s Jennings decision will be its role in determining which branch of government makes immigration policy as the next administration prepares to enter the White House, said Jessica Vaughan, director of policy studies for the Center for Immigration Studies that has helped inform Trump’s hawkish immigration proposals.
“Under Obama policies, the system is greased to result in more criminal alien releases, under the guise of bond hearings as ‘required due process’ and an alien’s ‘right’ to be considered for release,” Vaughan said in an email.
“Congress chose not to require bond hearings and other trappings of the criminal court system for non-citizens in deportation proceedings. The main reason is because aliens in proceedings are very likely to skip out on their immigration court proceedings.”
Vaughan said she did not think the solution for the next administration would be “mass incarcerations” of illegal immigrants, but expediting immigration court proceedings so the lengthy detentions are necessary “only in rare cases.”
The number of pending deportation cases in immigration courts’ backlog more than doubled between the end of the 2008 fiscal year and July 2014, according to data compiled by Syracuse University.
However the court resolves Jennings, the vacancy created by Justice Antonin Scalia’s death figures to loom large in this immigration case. In June, the court deadlocked 4-4 on the question of whether to lift the lower court’s injunction against Obama’s executive actions on immigration, which left the injunction in place.
Trump’s appointee to the court is poised to have a determinative impact on future contentious immigration cases for years to come.
