Posted on October 10, 2018

At Immigration Argument, Justice Kavanaugh Takes Hard Line

Adam Liptak, New York Times, October 10, 2018

A Supreme Court argument on Wednesday over the detention of immigrants during deportation proceedings seemed to expose a divide between President Trump’s two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh.

The question in the case was whether federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.


But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.


“Basically, at the end of the day, Congress’s answer was enough is enough,” [federal attorney Zachary D.] Tripp said. “If you’re an alien, you come here, you commit one of these crimes, you’ve effectively forfeited whatever right you have to remain at large in the community.”

In April, Justice Gorsuch joined the court’s four liberal members in a 5-to-4 decision striking down a law that allowed the government to deport some immigrants who had committed serious crimes, saying it was unconstitutionally vague. {snip}


The plaintiffs include people who entered the country illegally, tourists or students who overstayed their visas and lawful permanent residents. Among them are immigrants who arrived in the United States legally as infants, committed minor crimes like possessing marijuana and were detained years after completing their sentences.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, concluded that the law requires mandatory detention only if federal authorities take immigrants into custody soon after they are released.

“Because Congress’s use of the word ‘when’ conveys immediacy,” Jacqueline H. Nguyen wrote for a unanimous three-judge panel, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

Justice Kavanaugh disagreed, saying the 1996 law put no time limits on the detentions it required.

“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so,” he said.


Justice Kavanaugh disagreed. “The problem is that Congress did not trust those hearings,” he said. “Congress was concerned that those hearings were not working in the way that Congress wanted and, therefore, for a certain class of criminal or terrorist aliens said, ‘No more.’”