Using an unusual power, the Supreme Court on Thursday afternoon suddenly turned an important case on government detention of foreign nationals from a review of federal statutes into a full-blown constitutional controversy.  Two weeks after hearing argument on the government’s appeal in the case of Jennings v. Rodriguez, the Court ordered lawyers on both sides to file new written briefs on the same issues, but this time on how to answer them under the Constitution.  The new briefing order is here .

Whether prolonged detention of non-citizens in prison-like conditions might violate the Constitution was an issue that hung heavily over the November 30 hearing, but Chief Justice John G. Roberts, Jr., and other Justices insisted that this was not an issue before the Court.

As the Court had granted review of the case on June 20, it was focused entirely on the meaning and scope of federal immigration laws governing detention.  In fact, when the case was decided by the U.S. Court of Appeals for the Ninth Circuit, it created new rights for detained individuals to challenge their confinement under those laws, doing so because it said that, otherwise, it would have to strike down those laws as unconstitutional.  That is the judicial technique called “constitutional avoidance,” and it is based on the long-standing tradition that federal courts will not answer constitutional questions unless they just can’t be avoided.

When the government appealed to the Supreme Court, it raised only statutory questions, all focused on whether a detained foreign national had a right to have a “bond hearing,” with the possibility of release, if that person had been confined for six months or more.  All three questions in the petition turned only on the statutory language.  The Ninth Circuit Court said that all detained individuals had a right to such a hearing if held six months or more, regardless of why they were being detained.

Ordinarily, if a lower court does not decide a constitutional question, as in this case, the Supreme Court does not consider that question to be validly before it.  That was the point the Chief Justice and others had made on November 30.

But the Supreme Court has authority that is considerably more expansive than lower federal courts do, to simply ask a new question on its own, or rewrite the questions that an appeal has sought to raise, and tell lawyers to answer the new version.  That is what the Court did on Thursday.

Each of the questions in the new order is put in almost the same words as the statutory questions the Court had agreed to review, but each of the three questions begins with the phrase: “Whether the Constitution requires….”  Among those questions is the portentous one of whether the Constitution requires a potential release hearing even for a detained “criminal or terrorist.”

Interestingly, at the November hearing, the Justice Department’s lawyer had argued that there had been no need for the lower court to avoid the constitutionality of detention because, he contended, Congress clearly had the power to order prolonged detention of those who have no explicit legal right to be in the country, with no clearcut limit on how long they could be kept in confinement.

After studying the Jennings case in private following the hearing last month, the Justices obviously came to the conclusion that the constitutional issues were clearly looming in the case, so they ordered lawyers to take on those questions; the lawyers have no option but to do so.

The new briefs are due from both sides simultaneously on January 17, with amicus briefs due ten days later on January 27, and reply briefs due simultaneously on February 6.

There was no indication that the Court would hold a new hearing on the constitutional issues.  However, the Court has the option of scheduling a new hearing if it wishes after getting the added briefs.