Huffington Post: “Supreme Court Foreshadows Big Constitutional Ruling In Immigration Case”

Last week the Supreme Court issued an unusual order in a pending immigration case that could foreshadow a key constitutional ruling and in doing so limit President-Elect Trump’s powers to detain certain noncitizens who may be eligible to be removed from the country. The ruling is in regards to a class-action challenge (Jennings v. Rodriguez) brought by the American Civil Liberties Union (ACLU) on behalf of thousands of immigrants, many of whom are in the US legally but who have been detained without an opportunity for a bond hearing in front of a judge to possibly obtain release. US federal law grants immigration authorities broad discretion to detain foreign-born individuals if they are apprehended at the border or have criminal backgrounds. The Supreme Court’s task in this case is to “determine what limits, if any, exist for that grant of authority.”  

The justices appeared divided over how to rule, and the new order requests that lawyers for the federal government and the ACLU file a new round of legal briefs addressing whether the Constitution would require a “hearing in front of a judge―or even a release, if the government fails to present strong enough evidence that the person shouldn’t be released―if a detention lasted six months.” The lead plaintiff in the case is Alejandro Rodriguez who was detained for three years without a hearing even though he was a lawful permanent resident. He was facing removal over two minor offenses, a drug charge and joyriding as a teenager.

The ACLU explains the consequences of long-term detainment for noncitizens:

Without a bond hearing, people…may spend years behind bars in a prison jumpsuit, shackled for visits with loved ones, subjected to strip searches and solitary confinement, and referred to by guards as a number. They may suffer separation from family members, often across state lines; see their children placed in foster care; and lose jobs, savings, homes, and businesses. About 73 percent of immigration detainees are held in private prisons, which have a grisly track record of deaths due to medical neglect, suicides, and sexual abuse.

At the case’s oral arguments in November, the Supreme Court’s more conservative members appeared to be opting for a narrower ruling based on current immigration law and a prior appeals ruling in favor of the detainees. “We do not have the constitutional issue before us,” Justice Anthony Kennedy told Ahilan Arulanantham, the ACLU lawyer who argued the case. Justice Kennedy authored a concurring opinion in an earlier immigration case that upheld only brief detentions without due process.

With the additional request, the Huffington Post notes, the “justices may be signaling a desire to not split 4-to-4 in a case that could directly implicate the authority of the incoming Trump administration in an area that was a linchpin in the president-elect’s campaign.”  

“I think it’s really hard to read the tea leaves here,” Arulanantham tells the Huffington Post. He adds that the justices’ request last Thursday indicates “the court wasn’t yet satisfied with either party’s position.”

New York Times: “Supreme Court Tie Blocks Obama Immigration Plan”

Today the US Supreme Court issued a 4 to 4 split decision in the long-awaited case, United States v. Texas, effectively upholding the lower court’s injunction halting the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The original DACA program launched in 2012 remains in place. This one-sentence decision is a major blow to the executive actions President Obama proposed in November 2014 as a result of congressional inaction on comprehensive immigration reform. The decision will potentially affect as many as five million undocumented immigrants who would have been shielded from deportation and allowed to legally work in the United States had these programs been allowed to proceed.    

President Obama, speaking at the White House, criticized the 4 to 4 tie. “But for more than two decades now, our immigration system, everybody acknowledges, has been broken. And the fact that the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further from the country that we aspire to be.” After Obama announced his executive actions in 2014, Texas and twenty-five other states challenged the plans, which were subsequently blocked in federal district court the next year. “Today’s decision keeps in place what we have maintained from the very start: one person, even a president, cannot unilaterally change the law,” Ken Paxton, the Texas attorney general, says in an issued statement. “This is a major setback to President Obama’s attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law.”

Steve Vladeck, CNN contributor and professor of law at American University Washington College of Law, says the decision illustrates how handicapped the Supreme Court is when it’s not fully staffed, referring to the death of Justice Antonin Scalia earlier this year. The Supreme Court will not be able to issue an official ruling on the case until a ninth judge is confirmed. Vladeck tells CNN: "Although proponents of President Obama's immigration plan might prefer this result to a 5-4 loss, which would have set a nationwide precedent, rulings like these create uncertainty for the courts and the country going forward—uncertainty that, at the end of the day, puts more pressure on the political branches and dilutes the role of the Supreme Court." 

This decision is a disappointment to many activists who have been campaigning for comprehensive immigration reform for years. Summarizing the frustrations that many feel, Victor Nieblas Pradis, president of the American Immigration Lawyers Association (AILA), says: "In another blow, the Supreme Court has denied the opportunity for parents of United States citizens and students to seek refuge and protection from a dysfunctional immigration system that is broken and apparently unfixable by our elected leaders.” And Benjamin Johnson, AILA Executive Director, adds: “Though today's decision is disappointing, we must remember that this is not the end of the road for these incredibly important programs. The lower courts will continue to consider the case and ultimately, I would not be surprised if it ends up before the Supreme Court once again. In the meantime, Congress must do its job and pass smart immigration laws that will keep families united, benefit the economy, and propel our country forward.”