On Wednesday the Supreme Court heard oral arguments in the case of Jennings v Rodriguez, which seeks to determine whether immigrants detained for six months should be offered bond hearings that could lead to their release into the United States while they wait for the immigration cases to be resolved.
Ian H. Gershengorn, the acting solicitor general for the Department of Justice, started his argument by saying that a decision from the Ninth Circuit to grant more periodic hearings for detained immigrants was “a serious misuse of the constitutional avoidance canon.” Here is what Gershengorn said, according to the transcript:
Congress provided extensive substantive and procedural protections for aliens whom the government wishes to remove, but at the same time, addressed the real concerns about recidivism and flight risk by providing for mandatory detention during removal proceedings for certain categories of criminal aliens and aliens arriving at our shores.
The Ninth Circuit undid that legislative balance, invoking principles of constitutional avoidance to require the government to release those aliens unless the government can prove by a preponderance of the evidence every six months that detention remains necessary.
The Ninth Circuit’s decision is a serious misuse of the constitutional avoidance canon. With respect to arriving aliens, there is no constitutional problem to avoid. As even the Ninth Circuit recognized, the statute is constitutional in the vast majority of applications, and any concerns about outlier cases involving lawful permanent residents can be dressed in as-applied challenges.
And with respect to criminal aliens, the text of the statute forecloses the Ninth Circuit’s approach, and in any event, the statute is constitutional as written under this Court’s decision in Demore.
The net result of the Ninth Circuit’s one-size-fits-all rule is — is a regime that’s at odds with the text that Congress enacted. It undermines DHS’s enforcement priorities, and it creates incentives for individual aliens to delay their removal proceedings.
During a back and forth with Justice Elena Kagan, Gershengorn reiterated his belief that imposing a six-month rule for detained immigrants would not be beneficial:
The amount of time increases here in part precisely because, as I indicated at the start, Congress has provided a substantial number of substantive and procedural protections for individuals: They have the right to lawyer at their own expense. They have the right to an interpreter. They have the right to present evidence and to gather evidence and to use subpoenas to get evidence. They can appeal to the BIA [Board of Immigration Appeals]. They can appeal to the Court of Appeals. But with that process comes time. And I think a focus on just the length of time without the reasons for the delay, without looking at the fact that 15 aliens routinely and understandably file for continuances, and to impose a rigid six-month rule like the Court of Appeals did is really a mistake.
When Gershengorn said that most cases for immigrant detainees take about 14 to 19 months, Justice Sonia Sotomayor said, “We are in an upended world when we think 14 months or 19 months is a reasonable time to detain a person.”
You can read the full transcript of the arguments below. POLITICO’s Josh Gerstein published a detailed summary of the arguments here. In addition, Supreme Court expert Lyle Denniston offered this conclusion about the case:
If the Court does split on what the detention law means, but also is split on the constitutionality of the law as written, it could wind up divided 4-to-4. That would have the effect of upholding the Ninth Circuit Court ruling, but without setting any precedent that would apply to other cases of detention.
In that event, the Court might simply choose to sit on the case until a new ninth Justice is on the bench, and then start all over with a new review later in the current term, or in the next term.