On Tuesday, the Supreme Court will once again attempt to find its way through the bewildering maze that is immigration law, with a new look at the lingering issue of the federal government’s power to keep non-citizens in detention while they await being deported. The two cases to be heard tomorrow unfold against a broad constitutional background on the rights of non-citizens living inside the U.S., even those who do so illegally.
The cases, both on the same issue:
Johnson v. Arteaga-Martinez. Starting at 10 a.m.
U.S. Attorney General Merrick Garland v. Gonzales. Starting at about 11:30 a.m.
The “live” audio (no video) will be broadcast at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and also can be heard at c-span.org/supremecourt as well as at C-Span App Now.
Background: It has been a feature of constitutional law since the late 19th Century that non-citizens who were in the country illegally nevertheless were protected by “due process” – that is, procedural safeguards — before they could be deported or before they could be detained as a form of punishment. The Supreme Court relied upon that history when it wrote in a 1953 decision: “Aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”
And the Court included that very quotation in a decision in2001 on the detention of non-citizens —Zadvydas v. Davis) – a key precedent that both sides have debated in their legal briefs in the new cases being heard Tuesday. The Zadvydas decision declared that detention of a foreign national facing deportation could continue for an initial 90 days, but probably would be unconstitutional if it extended beyond another six months. It essentially read that limitation into the specific language of immigration law.
However, it could be significant for these new cases that the 2001 decision came on a 5-to-4 vote, and that the only member of that majority still on the Court is Justice Stephen G. Breyer, and the only member of the dissent still serving is Justice Clarence Thomas. The shift in Court membership over the past 20 years has led to the creation of a six-Justice, highly conservative majority with Thomas part of the new majority and Breyer a fairly frequent dissenter. That may suggest that the precedent is not as sturdy as it once was.
Even so, two lower federal appeals courts relied upon that precedent – and expanded on it — in ruling, separately, that after a foreign national facing deportation has been held six months beyond the initial 90 days without being sent away, he is entitled to a hearing at which he could challenge the need for his continued detention.
If released as a result of such a hearing, a non-citizen can stay in the country but only under strict supervision by federal officials and has no guarantee of being allowed to remain indefinitely and no guarantee against a future deportation. Federal courts have generally ruled that such a hearing cannot lead to release if the person is a risk of fleeing beyond government reach or is a dangerous person or is suspected of terrorism.
The new appeals courts’ decisions calling for such hearings came in cases involving several Mexican nationals, some of whom have repeatedly re-entered the U.S. without permission after being deported earlier. They are now being confined in immigration facilities awaiting new deportation. Prior deportation orders have been renewed for each of them.
Federal immigration officials and Attorney General Garland appealed the two cases to the Justices, contending that the specific language of federal immigration laws does not require such justify-or-release hearings. They also argued that the Zadvydas precedent involved a different situation, in which immigration officials had been unable to arrange over a period of six months for the foreign national to be sent home.
The officials do have a more recent precedent upon which they are relying: a 2018 decision (Jennings v. Rodriguez) by the Court. That ruling, involving a different section of federal law than the one at issue in the new cases, declared that requiring a potential release hearing every six months was not mandated. Such a requirement, the Court said, was neither stated nor implied in that provision. (That was a 5-3 ruling, with five conservative Justices in the majority and three liberal or progressive Justices in dissent – a clear sign of the changed Court in action.)
The lower courts in the cases involving the Mexican nationals said that it would raise constitutional problems, under due process principles, to transpose the Jennings decision to the different section of the law at issue in these cases.
The question before the Court: Does any provision of immigration law, either in its specific wording or in its implications, require that a non-citizen being detained pending deportation have a release hearing after six months in custody?
Significance: The Court has being trying for decades – in reality, more than a century — to clarify just how far the Constitution goes to assure fair government procedures for non-citizens who have entered the U.S. without permission.
Although the process usually involves parsing through arcane statutes, open to varying interpretations, the constitutional guarantees are always in the background. That has led lower courts, and sometimes the Supreme Court itself, to read the texts of the laws at issue more narrowly in order to avoid striking down those laws.
Also in the background, though, is the long-standing practice of the courts to accept that the Constitution gives Congress sweeping authority to control who enters the country from outside, and also to accept that the Executive Branch is better equipped to decide policy questions that bear on foreign relations and U.S. dealings with other nations – including how each nation controls its own borders.
The Supreme Court under Chief Justice John G. Roberts, Jr., has accepted those constitutional realities – most notably, in its 2018 decision upholding President Trump’s ban on entry into the U.S. of millions of nationals from nations where the Muslim faith is predominant. That ruling came on a 5-to-4, split along conservative-liberal lines.
Although President Biden, on newly taking office last year, swiftly overturned that presidential order, the Court’s decision may well have been a strong indicator of where the high tribunal will go as new cases reach it.
The Court finishes up this week’s hearings on Wednesday with a ruling seeking to clarify the time limits for filing appeals to a specialized federal tax court. That case will be discussed Tuesday in this space.