The Supreme Court has a long history of staying away from constitutional rulings unless they just can’t be avoided. It will even give a federal law an unusual interpretation, if that seems necessary to avoid striking it down as unconstitutional. But what if a law has a high potential for violating the Constitution, but there may not be a Supreme Court majority to think up a way to save the law by giving it a new meaning?
That was the dilemma the Court faced on Wednesday, as it spent an animated – and sometimes confusing – hour examining how much power the federal government has to keep in prison-like detention perhaps tens of thousands of foreign nationals who have entered the U.S. — not all of them illegally; some already have been living here– while officials consider whether to deport them.
Chief Justice John G. Roberts, Jr., appeared to have in mind that very dilemma by suggesting, on the one hand, that the Court has no authority to rewrite the immigrant detention law but, on the other hand, it technically does not even have before it the question of whether that law, as written, might violate immigrants’ constitutional rights to due process. And there was a further complication: finding a way to deal with this situation may be elusive, because a realistic possibility is that the eight Justices will split 4-to-4 on deciding the case.
The detention dispute, in the case of Jennings v. Rodriguez, was taken to the Court by federal immigration officials, because they are deeply disturbed about limitations on detention powers imposed by the U.S. Court of Appeals for the Ninth Circuit.
Because the appeals court thought that prolonged detention of undocumented immigrants without a chance to contest their confinement would be unconstitutional, it chose to avoid that question by requiring the government to hold a potential release hearing for every detained immigrant every six months, or else release them to live in the U.S. Moreover, it imposed a tough test that the government would have to meet at such hearings in order to continue the detention.
The government’s top lawyer in the Supreme Court, Acting Solicitor General Ian H. Gershengorn, protested at Wednesday’s hearing that the appeals court had imposed a “rigid, one-size-fits-all” regime, and did so when there really is “no constitutional problem to avoid.” Congress clearly had authority to give the government broad power to hold potential deportees, and that should settle the matter, Gershengorn contended.
The Court’s more liberal Justices, however, repeatedly pressed him on how long detention would have to continue before it would be unconstitutional. At one point, Gershengorn seemed to be saying that 20 years would be too long, but it was not clear that he meant that as the only limit.
The Court’s more conservative Justices, though, displayed deep skepticism about the Ninth Circuit Court’s interpretation of the detention law, and thus seemed inclined to just overturn that ruling and send the case back. But there was no indication that they could gather five votes to take that approach.
While Justice Anthony M. Kennedy might be voting with the three more conservative Justices on that approach, he has expressed concern in the past about prolonged detention of undocumented immigrants, and he might well see a constitutional problem lurking in the absence of a regular hearing to test continued detention.
A lawyer for the immigrants who won the case in the Ninth Circuit, American Civil Liberties Union attorney Ahilan T. Arulanantham of Los Angeles, defended the Ninth Circuit Court’s ruling, but much of his argument seemed to be driven by deep constitutional doubts over detention law if it did not provide something along the lines of what the appeals court had done. When he attempted to suggest some alternative ways to read the law at issue, the Chief Justice sharply retorted that the Court could “not just write a different statute.”
But when the immigrants’ attorney talked of a due process problem with the lack of any “meaningful inquiry” into the justification for prolonged confinement, both the Chief Justice and Justice Kennedy said that the constitutional issue had not been decided by the appeals court, so it was not before the Justices.
Justice Elena Kagan sought to counter that last point, saying that the Ninth Circuit Court had actually given a lot of thought to the constitutional question that might surround prolonged detention, and gave the law an interpretation precisely because it felt that was constitutionally required to save it. The Court could take up the constitutional issue, she suggested, to devise some outer limit on detention authority.
Among the Court’s four liberals, Justice Stephen G. Breyer was the only one who seemed to be inclined to try to re-interpret the detention law in order to keep from having to strike it down. He would read the law to require hearings only when a specific immigrant might well have a strong claim for not being deported.
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.
(NOTE: This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)