This was already a big week for immigration law at the Supreme Court, and it could get even bigger.
First, there may be news on the Muslim Ban. Recently, Trump added Venezuela and North Korea to his ban list, as if to say, “See! This isn’t a Muslim ban, after all!”
Then the DOJ filed a motion with the Supreme Court of the United States, asking it to discontinue proceedings, and nullify all lower court rulings on the previous version of Trump’s ban because it no longer exists. For their part, opponents of the ban asked the Court to go ahead and issue a ruling on the case.
Lawrence Hurley, who covers the Supreme Court for Reuters, suggested in a Tweet the court could discuss the current status of the Muslim ban case, during the Justices’ Friday conference.
Justices have their weekly meeting tomorrow so next steps on travel ban could be discussed then
— Lawrence Hurley (@lawrencehurley) October 5, 2017
The fact that opponents of the Muslim ban want a ruling strongly suggests they are confident of a favorable outcome, while the DOJ would rather leave the case undecided. It’s possible this is because the DOJ doesn’t want to be embarrassed with yet another loss in court. More likely, they believe that Trump’s tweaks of the Muslim ban may be sufficient enough to disguise the original intent to ban people from the United States on religious grounds. At any rate, if the court decides against ruling on the case, it means that if needed, further down the road, the DOJ has another chance to convince the court an unconstitutional Executive Order really is constitutional.
On Wednesday, the Court heard oral arguments in another major immigration case, Jennings v. Rodriguez. This was a class action challenging the constitutionality of several laws pertaining to the detention of immigrants. The court heard argument on if immigrants seeking admission and are subject to detention, must be afforded bond hears and possible release if detention exceeds six month. Another issue is if alleged “criminal or terrorist aliens” are entitled to bond hearings and possible release if detention lasts six months. Finally, the court heard argument on the claim that at bond hearings immigrants should be entitled to release if detention lasts six months unless the government can prove the immigrant is a flight risk or a danger to the community.
If the court rules in favor of the plaintiffs, the ruling will place restrictions on the terms and conditions under which the government can detain an undocumented immigrant for more than six months.
If the court rules in favor of indefinite detention for immigrants, it weakens this constitutional protection for everyone else – not based on criteria like if they are a flight risk or a risk to society, but simply because of who the detainee is. Once the roots of this concept are established in law, it’s far easier for the government to simply expand the list of who can be detained indefinitely. We’re seeing the use of this approach in Trump’s Muslim Ban.
Initially, the DOJ was trying to argue that immigrants have absolutely no constitutional protections and therefore could be held indefinitely without review, regardless of circumstances.
That argument didn’t go very well, as reflected in this exchange between Justice Kagan and DOJ attorney, Malcolm L. Stewart.
JUSTICE KAGAN: Mr. Stewart, is — is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?
MR. STEWART: It is premised on that. Now, we do have the –¬
JUSTICE KAGAN: Okay. If it is premised on that, I mean, Justice Scalia in one of his opinions talked about, surely, that -¬ that can’t be right; could we torture those people, could we put those people into forced labor? Surely, the answer to that is no. Is that right?
MR. STEWART: Yeah, I should have been more precise in saying they have no constitutional rights with respect to the determination whether they will be allowed to enter the country.
There may be cases where that is justified, but the government wants a blank check.
The problem is as Justice Breyer pointed out, the treatment of undocumented immigrants is inconsistent some immigrants don’t get bail hearings and in other cases, the decision on if an immigrant can have a bond hearing is at the discretion of the agency.
And so what’s the basis for reading the word “detained” sometimes to allow bail hearings at the discretion of the agency; other times not to allow bail hearings and keeping the people possibly for a year, a year and a half, in a jail cell without — sorry, I don’t mean my voice to rise — but — but with -¬ without even a bail hearing?
The implications of a ruling in the Trump administration’s favor is to allow indefinite detention, without charge and without bail hearings, for an unrestricted period of time, regardless of whether the immigrant is a suspected terrorist, or someone who is otherwise law abiding and is neither a flight risk nor a threat to society.
Should the court rule in the DOJ’s favor, it means the Trump administration could, theoretically, keep immigrants in detention for years, without any legal rights at all. Of course, this will appeal to nationalists. Here’s the thing. If an authoritarian like Donald Trump establishes a way to hold immigrants indefinitely, it’s a matter of time before the list of people who can be held indefinitely expands.