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It Sure Looked Like Kavanaugh Wasn’t Such a Fan of Due Process at Yesterday’s Oral Arguments


It’s been a busy week at the Supreme Court, and we’re already seeing some big differences in the way Justices Neil Gorsuch and Brett Kavanaugh play the game. Yesterday, SCOTUS heard oral arguments in the case of Kirstjen Nielsen, Secretary of Homeland Security v. Mony Preap.

The case brings up the question of whether federal law requires the detention — sans bond hearing — of people legally in the country who have committed deportation-eligible crimes. That sounds sort of sterile, so let’s be clear what we’re talking about here. There are people in this country who have lawfully immigrated, but who have committed crimes – some of those crimes being relatively minor non-violent offenses. Many of these people have served jail sentences or probation for their crimes, and have gone on to live for years, never again crossing paths with the criminal justice system. The federal government is now insisting that it has the power (or actually, the obligation) to pick these people up, hold them in detention without bail, and keep them there while it decides whether or not to deport the offenders. Oh, and this detention? According to the Trump administration, it can be done any old time the government wants – even if that time is literally years after the person has completed his or her jail term (if there even had been a jail term).

I think Justice Stephen Breyer explained it best in his question posed at the government during yesterday’s oral argument:

So you think a person, 50 years later, who is on his death bed, after stealing some bus transfers, that this – this paragraph says that the Attorney General shall release him and hold him without bail, even though in this country a triple ax murderer -­is given [a] bail hearing?

Although Zachary D. Tripp, attorney for the government tried his best to differentiate Justice Breyer’s example from his position, he eventually ended up right where Breyer left off, saying, “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.”

The legal issue at hand comes down to interpretation of a 1996 federal statute which includes one [apparently] ambiguous word – “when.”  8 U.S. Code § 1226 – Apprehension and detention of aliens says that the Attorney General shall detain an alien pending a ruling on deportation when the alien is released.” What’s unclear is whether or not the statute means the detention needs to take place immediately upon that person’s release.

Without a doubt, questions like these are complex and require a measured, informed approach. However, there are two things that seem pretty clear. First, as a country, we’re not real hot on the idea of letting tons of time pass and then, without warning, allowing the government swoop in and yank people out of their homes. Immigrants or not, convicted criminals or not, we really don’t do things that way. Once a person has dealt with the criminal consequences of any crime, we generally think the fair thing to do is to allow that person to move on, unencumbered.

Second, the right to go before a judge and request bail is one of the biggies. Most Americans would be horrified at the idea of a government agency locking them up without giving them a chance to be heard. And in this case, we’re not talking about people who have come to the U.S. unlawfully – we’re talking about people who are entitled to be here and who enjoy the protections of American law. Granted, immigration detention is not exactly the same thing as prison – but it’s definitely one of those things that’s close enough for bail.

With those two concepts of baseline fairness, let’s turn to what our new justices said during oral arguments yesterday. Neil Gorsuch  seemed to understand that the government’s position was a dangerous one, and pressed the administration’s lawyer:

Thirty years, and the government was aware of him the entire time and chose not to act. Kind of a laches argument. Is there any limit on he government’s power?

Gorsuch’s question dovetailed with one from Justice Elena Kagan, who asked:

Are you saying, Mr. Tripp, that … even if a person has been out for 15 years, has established ties in the community? Are you saying that there’s no constitutional problem with that?

Our newest justice, however, was on a whole other page. While pressing ACLU lawyer Cecillia D. Wang on her argument that the law requires prompt government action, Kavanaugh said, “Congress knew it wouldn’t be immediate,” and that, “What was really going through Congress’s mind in 1996 was harshness on this topic.”

Justices, of course, ask all sorts of questions during oral arguments – sometimes opting to take a position counter to their personal opinions for the sole purpose of fleshing out an argument. This case may well find a majority of justices opining that the 1996 statute could not possibly authorize government action that is so contrary to business as usual. We’ll have to wait and see what the Court decides; for now, though, Kavanaugh’s questions make it appear that he is positioned to give detained immigrants a lot less due process than customary criminal defendants.

[Image via Michael Reynolds-Pool/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos