Trumps immigration policy got a boost from the Supreme Courts decision in Neilsen v. Preap

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By Scott Lemieux

In popular imagination, the Supreme Court uses its isolation from electoral accountability to stand up for minorities that otherwise lack representation in the political process. It’s a nice theory but, in practice, the Supreme Court has tended to favor the interests of the powerful over the powerless — even when the latter has a credible legal argument and the former does not.

Tuesday’s ruling in favor of allowing Immigration and Customs Enforcement to engage in the indefinite detention of non-citizens, in Neilsen v. Preap, is an example of the latter. A bare 5-4 majority of the Supreme Court has decided to allow, among others, a legal permanent resident of the United States to be detained indefinitely without a bond hearing, despite clear statutory language strongly suggesting that he should not have been.

Mony Preap, the lead plaintiff in the case, was convicted of two counts of misdemeanor marijuana possession in 2006, for which he could have been detained and potentially deported. But he was not detained by immigration officials until 2013, when he was released from state incarceration on a different charge, battery, which would not trigger automatic detention without bail under the statute. (He won his fight against deportation and had been released.) The other plaintiffs in the case were released 5 and 11 years after being detained.

All were held indefinitely without a hearing, giving them the chance to argue that they could be released with bail because they did not pose a danger to their communities or a flight risk. The case was brought as a class action representing all immigrants in similar situations.

This particular case turns not on a constitutional argument but on the question of how to interpret the relevant statute. In this case, the law requires the attorney general to “take into custody” any alien who has committed one of a list of particular criminal offenses “when the alien is released” from custody. The subsequent paragraph forbids aliens detained under these circumstances from being released, except in cases involving witness protection.

The question in this case is whether the “when released” language applies to aliens detained at the time of their release, as the plaintiffs argued, or if it requires detention without bail for aliens detained at any time after their release, as the federal government argued.

The three-judge panel of the Ninth Circuit Court of Appeals unanimously sided with the plaintiffs. ”Under the plain language” of the statute, the court held, “the government may detain without a bond hearing only those criminal aliens it takes into immigration custody promptly upon their release from triggering criminal custody.”

But Tuesday’s five-four decision written by the George W. Bush nominee Samuel Alito — consistently the current justice most hostile to civil liberties — the Supreme Court rejected the straightforward interpretation of the Ninth Circuit. Making clear the court’s hostility to state and local governments who have attempted to protect the interests of immigrants (which anti-immigration advocates and the president refer to as “sanctuary cities”), Alito argued that “state and local officials sometimes rebuff the government’s request that they give notice when a criminal alien will be released.”

Therefore, he argued, despite the apparent “when released” limitation of the statute, the federal government must be given the leeway to impose mandatory indefinite detention “when it comes to aliens who are arrested well after their release.”

Going even farther, a concurrence written by Justice Clarence Thomas and joined by Trump nominee Neil Gorsuch — who are quickly establishing themselves as the two most reactionary justices to sit on the Supreme Court since World War II — would have held that “no court has jurisdiction to decide questions concerning the detention of aliens before final orders of removal have been entered.” The rest of the majority would not go so far as to endorse this fully Trumpian position (although, given how unlikely the court has been to side with the claims of such immigrants, the distinction is more formal than practical).

Justice Breyer wrote a dissent — which he read from the bench after the opinion was announced — speaking for the court’s three other Democratic nominees. Like the Ninth Circuit panel, Breyer found that “the ordinary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation” did not permit aliens detained years after being released from being held indefinitely without a bail hearing.

Breyer’s dissent also made the stakes of the decision clear. “The issue may sound technical,” he observes. “But it is extremely important.” The majority’s opinion will substantially increase the number of aliens who can be held without bail, with the federal government not being required to show a danger or flight risk in any particular case. This would be a disturbing outcome under any administration, but is even more so under the Trump administration.

This indefinite detention, as the dissenters put it, “runs contrary to basic American and common-law traditions.” But, as has so often been so often the case, when either or both of the rights of immigrants and the War on Drugs are involved, the court is more than happy to ignore these traditions.