Althouse: "The Supreme Court on Tuesday ruled that the federal government can detain immigrants indefinitely for past crimes, even if they have been previously released."

March 19, 2019

"The Supreme Court on Tuesday ruled that the federal government can detain immigrants indefinitely for past crimes, even if they have been previously released."

"In a 5-4 decision that fell along ideological lines, the high court reversed lower court rulings that found immigrants could only be subject to mandatory detention without a bond hearing if they were detained promptly upon their release from custody."

Politico reports.

53 comments:

CJinPA said...: It seems that courts are increasingly deciding issues that are part of an overall political debate. The people haven't reached consensus the issues that are being decided by judges. Maybe its always been that way.

But when you read the coverage of these close decisions, you can almost hear "for now" when you read "Court rules in favor of X." The palpable feeling is that every close ruling, if a "conservative majority," is only temporary, until progressives take over and revisit each decision.; 3/19/19, 1:19 PM
Ralph L said...: That "indefinitely" is a bit misleading. I believe the idea is to deport them back to their home country, not lock them up here for life. IOW, defeat the Sanctuary City/State crap.; 3/19/19, 1:23 PM
Lucid-Ideas said...: I read that much of the decision came down to an interpretation of what "when" meant, in the statute.

Apparently, the 4 dissenters interpreted "when" to mean "very shortly after" and the 5 majority justices interpreted it to mean "at some point in the future"...

Are. you. kidding. me? "Very shortly after"? Really?

A 5-4 decision on something like this just darkened some of the light at the end of my tunnel. Geez.; 3/19/19, 1:31 PM
Rob said...: The Court based its decision on the ancient legal doctrine, Good riddance to old rubbish.; 3/19/19, 1:31 PM
hstad said...: Very disappointed in the "Minority's" (liberals) votes. They basically argued on some stupid word meaning of "when" that criminals can't be detained. Politics will ruin these country.; 3/19/19, 1:34 PM
Nichevo said...: If this news were to be disseminated among the populations now performing this journey, perhaps they would be less motivated. So, the news will probably be suppressed down south.; 3/19/19, 1:43 PM
Nonapod said...: If you committed a crime in a foreign country, a crime that's serious enough for jail time, you might expect to be deported after serving your time. You're a guest and you broke the rules. You shouldn't be surprised to be escorted out.

Breyer wrote: "It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without any opportunity to obtain bail"

What constitutes a "minor crime"? Mony Preap was apparently convicted of battery. I can't find any specific information beyond that.; 3/19/19, 1:53 PM
Amadeus 48 said...: RBG has outlasted her pull by date. I am disappointed in Kagan and Breyer. They know better than that.; 3/19/19, 2:07 PM
AllenS said...: It bothers, and worries me immensely, when it isn't 9-0. WTF?; 3/19/19, 2:09 PM
n.n said...: Two separate classes: illegal aliens and criminal immigrants. Two separable issues: illegal immigration and other crimes, where the first is settled through deportation and the latter is settled through time served. Emigration reform and consistent characterization of "the People" and "our Posterity", Constitutional and subordinate legal jurisdictions, would go a long way to resolving the conflict of interest.; 3/19/19, 2:10 PM
Mattman26 said...: Congress provided that certain categories of criminal aliens should be arrested for deportation proceedings "when" they are released from confinement, and provided that (unlike most categories of criminal aliens) they cannot apply for bail/release until their deportation proceedings are finished.

The 9th Circuit, deciding the matter contrary to how four other federal circuits have decided it, concluding that you're not in the "arrested when released" category unless you were arrested immediately upon release, such as at the prison door or at the bus stop. Seems sensible, right? [Sarc]

Majority noted, without harping on it too much, that some jurisdictions refuse to notify ICE when they're about to release these folks. So it's a blow against Sanctuary Cities/States. Works for me.; 3/19/19, 2:10 PM
Dave Begley said...: But it should have been 9-0.; 3/19/19, 2:11 PM
Ignorance is Bliss said...: For those following along at home:

Nielsen v. Preap at ScotusBlog.

8 U.S.C. § 1226(c); 3/19/19, 2:11 PM
Mike Sylwester said...: There are too many 5-4 decisions.

The Republicans should propose to enlarge the Supreme Court by two seats, which our President Trump could fill immediately.

Then all the 5-4 decisions would turn into 7-4 decisions.; 3/19/19, 2:17 PM
DKWalser said...: It's interesting that Politico didn't bother providing a link to the decision nor did they even name the case. Was that merely sloppy reporting, or did Politico intentionally make it difficult for its readers to read the text of the decisions for themselves?

When I read an article on a decision in a general interest news source, if the article reflects a particular bias I'm not surprised by a lack of a link to the source documents. Here, however, the article was reported fairly evenhandedly. So, the lack of sourcing is surprising.; 3/19/19, 2:18 PM
eddie willers said...: In a 5-4 decision that fell along ideological lines

Yeah Trump!; 3/19/19, 2:20 PM
Clark said...: I recommend reading J. Kavanaugh's two page opinion. He goes through a list of things the case was not about. I found that very clarifying.; 3/19/19, 2:24 PM
Bay Area Guy said...: The Left wants Open Borders, meaning they want illegal immigrants. They like the cheap labor, they like the expansion of gov't benefits, they like the chaos they bring, but most of all they like the increase in Democrat voters on the registration rolls (legal or ILLEGAL).

That's partly how they turned California blue.

So, they have a buncha activists who file all these frivolous lawsuits to gum up the works, and they have all these Obama judges who buy all this nonsense, and issue a spate of often tedious and conflicting orders.

The Left and the Dems are essentially enemies of the state.; 3/19/19, 2:33 PM
The Godfather said...: This sounds like a what-does-the-statute-say? case.

The defendant had been convicted in California state court of two counts of drug offenses (mariajuana), which made him subject to deportation. However, the feds didn't move to deport him for several years after he was released from jail. Then, after he was charged with battery, a non-deportable offense, the feds took him into custody and initiated deportation proceedings. He was held for 3 months, without a bond hearing, until the deportation proceeding failed, and he was released.

The Supreme Court ruled that the statute said the feds could hold the defendant without a bond hearing during the proceeding to deport him, because he'd served time for the MJ offenses, and nothing in the statute said that the deportation proceeding or the federal arrest in that connection had to happen within a short periond after he was released from jail.; 3/19/19, 2:44 PM
Jersey Fled said...: I resisted the temptation to post a snark comment about the 9th cicuit because Ann is moderating now.; 3/19/19, 2:52 PM
WisRich said...: Clark said...
I recommend reading J. Kavanaugh's two page opinion. He goes through a list of things the case was not about. I found that very clarifying.

3/19/19, 2:24 PM
------

If you like that, you're going to love the Thomas/Gorsuch concurring opinion which basically said "What in the hell are we doing ruling on this? The courts have no jurisdiction in this matter.; 3/19/19, 2:58 PM
mockturtle said...: It's moot because detention centers are well over capacity now.; 3/19/19, 3:01 PM
rehajm said...: I recommend reading J. Kavanaugh's two page opinion. He goes through a list of things the case was not about. I found that very clarifying.

Thanks. It is very clarifying.; 3/19/19, 3:01 PM
Wince said...: Bay Area Guy said...
The Left and the Dems are essentially enemies of the state.

Nation or people, they love the state so long as they are in control.; 3/19/19, 3:04 PM
readering said...: It's a statutory intepretation case. As Breyer writes in the opening of his dissent (parts of which he read from the bench, an unusual procedure for him):

"The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordinary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary."

In other words, the majority was being results-oriented (although they couldn't agree how to get there, with two opinions and some commentary about other things from Kavanaugh).; 3/19/19, 3:04 PM
Jim at said...: Pay attention to what the media doesn't say about this case during your evening news.

The Trump and Obama Administrations were both arguing this position.; 3/19/19, 3:09 PM
JaimeRoberto said...: I'm confused on the actual ruling. "Detain indefinitely" would seem to violate the right to a speedy trial if it means the person could sit in prison forever. Or does it mean that the person can be arrested any time after their release from prison? In other words, detained after an indefinite period of time. If it's the latter case, then the headline is journalistic malpractice.; 3/19/19, 3:11 PM
Expat(ish) said...: Contrary to what I've read elsewhere, this is not a case of Trump judges making us safer.

If we didn't have Trump, I doubt this would have hit the SC because the ICE enforcement would probably have been less ... vigorous.

-XC; 3/19/19, 3:18 PM
Drago said...: "In a 5-4 decision that fell along ideological lines"

Politico inadvertantly provides support (not that any was needed for the rational-minded) that there really are "republican" and "democrat" judges.

Lefties and their LLR allies hardest hit.; 3/19/19, 3:32 PM
readering said...: There are Republican and Democratic appointed Justices. But there are not so much Republican and Democratic judges. Remember, anyone can file a lawsuit and anyone can appeal a defeat. Speaking only on the civil side, most cases are not that political. I have three cases in three different federal district courts right now. Two Judges appointed by George W. Bush, one replacing in the case a Judge appointed by Ronald Reagan, and one Judge appointed by Donald Trump. My co-counsel in one case is soon to take the district bench as a Donald Trump appointee (if Republicans can ever break the logjam in the Senate for nominees to the district bench). I represent the plaintiff in two cases and the nominal defendant in the third. I don't concern myself about the political ideology of any of these judges for these commercial cases I handle.; 3/19/19, 3:54 PM
Freder Frederson said...: Bay Area Guy said...
The Left and the Dems are essentially enemies of the state.

Nation or people, they love the state so long as they are in control.

You know for a bunch of people who supposedly love our system of government and hate anything that smacks of socialism or communism, you sure are comfortable with communist rhetoric.; 3/19/19, 3:57 PM
Bay Area Guy said...: @Freder,

"You know for a bunch of people who supposedly love our system of government and hate anything that smacks of socialism or communism, you sure are comfortable with communist rhetoric."

Hah -- the old "the Devil can cite scripture too" gambit.

We have a state. I want the public sector to be small, and the private sector to be big. You likely want something different.

But States have borders. If a buncha crazy right-wingers were trying to caravan into North Korea to change it, they would, by definition, be deemed enemies of that state. And, if they didn't have guns, they'd be shot.

Here, the Left and the Dems want our Southern border to be open. They want as many Mexicans, Central Americans and/or South Americans to enter.

Do you deny this?

Myself, I think this is a terrible idea. It depresses blue collar wages, it causes chaos.

So, I am critical of the politicians who push this policy and the folks who enable the policy. Perhaps, "enemies of the state" is poorly descriptive. How about "enemies of humankind"?; 3/19/19, 4:36 PM
Todd Roberson said...: Mike Sylwester said:

"There are too many 5-4 decisions.

The Republicans should propose to enlarge the Supreme Court by two seats, which our President Trump could fill immediately.

Then all the 5-4 decisions would turn into 7-4 decisions"

Maybe we should enlarge the court by another 426 members, require members to be elected and not appointed and have them represent geographical districts rather than be appointed at large.

Wait ...; 3/19/19, 5:06 PM
Yancey Ward said...: The key matter at hand seems to be the lack of notification to ICE that a criminal alien is being released at all. The interpretation the minority was pushing and was pushed by the 9th Circuit was an attempt to make the sanctuary jurisdictions' failure to follow federal law in the first place a binding, legal constraint on the federal government. The majority got this right, and it just indicates the decay of the Republic that this wasn't 9-0.; 3/19/19, 5:06 PM
Richard Dolan said...: The decision is narrow, involving only the construction of a few sections of an immigration statute, and the opinions lay out each side's reasons for their conclusions. The five justices in the majority have no substantive difference among themselves on the statutory interpretation issue. Thomas concurred in an earlier case (Jennings) but explained there why he believed the immigration statutes at issue deprived the courts of jurisdiction. He (now joined by Gorsuch) adheres to that view in this case and would have dismissed the case for want of jurisdiction' But the other seven justices disagreed on the jurisdictional point (as they had in Jennings), and so Thomas reaches the merits and said he agreed with the majority's disposition. Breyer looks at the same statutory language and reaches different conclusions about what it means. Just a normal day's work.

There is little profit in yammering on about whether the published opinions are just camouflage for results reached for other, usually partisan reasons. Perhaps so, but mind-reading of that sort is also a highly partisan exercise -- the conclusion is usually supported only by vigorous say-so, is always impervious to challenge and is never applied to the side one agrees with. Better to assume (even if sometimes counterfactually) that all the players are doing their level-best to reach a fair and just conclusion, even if they disagree (as they do) about what that is, what materials need to be considered (contemporary dictionaries, rules of grammar, history, purpose, etc.) to reach it, or what the right conclusion is in a particular case.; 3/19/19, 5:08 PM
Tom T. said...: Politico is pretty misleading, but presumably they're just working from one side's press release.

All of the parties were in agreement that Congress has permissibly designated a certain subset of criminal aliens as ineligible for bail during their immigration proceedings, when they are arrested by ICE after being released from state custody. The disagreement was that the Ninth Circuit held that "arrested after" meant "arrested within 24 hours after" -- if the alien evaded capture longer, then he would be eligible for a bail hearing, despite being in the ineligible subset. The government argued that "arrested after" contained no time restriction, and so even if the alien was arrested years later, he would still be ineligible for bail if he was in the ineligible subset. Four other courts of appeals has ruled in favor of the government, and the Ninth Circuit was an outlier. Today's ruling upholds the government's position.; 3/19/19, 5:11 PM
Michael K said...: If we didn't have Trump, I doubt this would have hit the SC because the opposition to ICE enforcement would probably have been less ... vigorous.

FIFY; 3/19/19, 5:14 PM
Freder Frederson said...: Here, the Left and the Dems want our Southern border to be open. They want as many Mexicans, Central Americans and/or South Americans to enter.

Do you deny this?

Not only do I deny this but find this accusation a gross lie spread by the right.

Name one prominent politician or public figure who is advocating for unrestricted immigration.

If anything, unrestricted immigration is a libertarian talking point and ideal. Free people should be allowed to vote with their feet.

So, I am critical of the politicians who push this policy and the folks who enable the policy. Perhaps, "enemies of the state" is poorly descriptive. How about "enemies of humankind"?

Apparently you believe "humankind" only exists in the U.S.; 3/19/19, 5:31 PM
fizzymagic said...: n.n said...
Two separate classes: illegal aliens and criminal immigrants.

So are you saying that the cardinality of the intersection of those two sets is zero? I've seen a lot of people on the left make that claim, but zero proof. Indeed, there are well-known instances of people falling into both groups being protected by so-called "sanctuary cities."

Or perhaps you are arguing that the relative size of the intersection is the same as that for the general population. Again, without any evidence.

If you want to be taken even semi-seriously, it helps to support your assertions. In the absence of any such support, I will state 3 facts:

1. People who are both illegal immigrants and criminals exist.
2. Some of those people have been shielded from law enforcement by sanctuary cities.
3. A subset of those have gone on to commit further crimes after being released by law enforcement.

Those facts are indisputable. So why are you trying to dispute them?; 3/19/19, 5:41 PM
rcocean said...: This was NOT a hard to reach, good arguments, on both sides, reasonable men can differ case. This should have been 9-0. Instead it was 5-4, just like the travel ban case.

As with the Travel ban case, the liberals just ignored a common sense reading of the law, and prior case history, and decided they didn't like the way the law read, so they were going to change it. Combine the liberal view of the case, and the sanctuary cities and states, and it would been impossible to deport criminal illegal aliens. Or as the liberals call them "Immigrants".

We now have 4 votes on the SCOTUS for getting rid of the immigration laws, just like they want to get rid of the death penalty and the 2nd Amendment. Don't forget that Ginsburg was a proud card-carrying member of the ACLU. I'm reminded again, how we dodged a bullet when Trump got elected.; 3/19/19, 5:46 PM
BamaBadgOR said...: Breyer's opinion is troubling for his attempt to mind read what Congress supposedly intended.; 3/19/19, 5:52 PM
Ignorance is Bliss said...: readering said...

In other words, the majority was being results-oriented (although they couldn't agree how to get there, with two opinions and some commentary about other things from Kavanaugh).

Except that the majority wrote the same thing about their interpretation of the statute. In other words, the minority was being results-oriented.

I've read both opinions ( though not the concurrences(sp?) ). I think the majority has the better of the argument.; 3/19/19, 5:53 PM
BamaBadgOR said...: This comment has been removed by the author.; 3/19/19, 5:54 PM
n.n said...: fizzymagic:

Two separate classes: illegal aliens and criminal immigrants. Two separable issues: illegal immigration and other crimes

So are you saying that the cardinality of the intersection of those two sets is zero?

No, I am not so green. At best, you could criticize an awkward framing. I am arguing that there are two classes of "immigrants": illegal aliens and criminal immigrants, of interest to this discussion, which are frequently conflated under the single label "immigrant". I am arguing that there are two instances of criminality that are applicable to both classes (i.e. other crimes) and separately (i.e. illegal immigration). Two classes, two instances, four possible permutations.; 3/19/19, 6:07 PM
RigelDog said...: What a misleading, biased headline! The clear implication is that the nasty Conservative Justices have now authorized indefinite detention of convicted aliens, where there had been no such ability to indefinitely detain heretofore. That now, sad illegal aliens are left to languish in prison for years, pining for the fjords, as they await deportation. Instead, the case holds that the statute in question should not be read to mandate IMMEDIATE detention of an alien released from custody in order to proceed with detaining them for deportation proceedings--i.e.,that unless Federal officers literally nab the alien as he steps out of state prison on his day of release, they would never have authority to arrest and detain as the alien awaits deportation. Once you get out of jail and walk around the corner before the Feds spot you, I guess it's supposed to be Ollie-Ollie-Oxen-Free.; 3/19/19, 6:09 PM
Achilles said...: The left isn't even pretending.

The 4 so called judges who are really leftist cranks tried to say the federal government couldn't enforce federal immigration laws if the democrats don't want them to.

Freder Frederson said...
"Here, the Left and the Dems want our Southern border to be open. They want as many Mexicans, Central Americans and/or South Americans to enter.

Do you deny this?"

Not only do I deny this but find this accusation a gross lie spread by the right.

Name one prominent politician or public figure who is advocating for unrestricted immigration.

Every action you people take is to increase illegal immigration and legitimize the abrogation of our immigration laws.

Every single one.

You can screech ad moan about people saying the truth.

You are enemies of this country and the people who currently legally live here.; 3/19/19, 6:56 PM
cubanbob said...: As an immigrant my heart does not bleed for these people. Before becoming a citizen I was aware that I was potentially deportable if I acted criminally and after becoming a citizen I am aware that if I commit a felony not only can I go to prison but potentially can be denaturalized and deported. Now if Congress were to repeal civil and criminal immunity from state and local officials who obstruct justice by obstructing ICE from performing its lawful function there would be a lessening of crimes committed by immigrants and illegal aliens.; 3/19/19, 8:24 PM
mockturtle said...: Cuban bob suggests: Now if Congress were to repeal civil and criminal immunity from state and local officials who obstruct justice by obstructing ICE from performing its lawful function there would be a lessening of crimes committed by immigrants and illegal aliens.

Indeed. Justice is being obstructed by the 'sanctuary city/state' crowd and, AFAIK, there has been no penalty. Have federal funds been withheld? Anyone indicted?; 3/19/19, 10:08 PM
LA_Bob said...: Todd Roberson said, "Maybe we should enlarge the court by another 426 members, require members to be elected and not appointed and have them represent geographical districts rather than be appointed at large...."

Sad to say, all too true.; 3/19/19, 10:48 PM
Richard said...: The SC undoes liberalism one case at at time. Kudos.; 3/20/19, 5:52 AM
Matt Sablan said...: Wait. Marijuana use is deportable but battery isn't? That's messed up.; 3/20/19, 5:53 AM
JAORE said...: "1. People who are both illegal immigrants and criminals exist.

I see your point, but this Venn diagram is a single circle. We have been conditioned to think, breaking Federal law to be here, phhhffft, that's not really a crime. But it is and we should not ignore it. That doesn't mean we have to deport, but it's still a crime.
How about there are illegal immigrants and illegal immigrants that have committed additional crimes.

And, re:Politico: "the U.S. Court of Appeals for the 9th Circuit — a popular Trump target —". How about, the most often overturned circuit in the nation?; 3/20/19, 7:00 AM
Ignorance is Bliss said...: Matthew Sablan said...

Wait. Marijuana use is deportable but battery isn't?

Possession, not use. But nobody goes to jail for a little marijuana posession. Most likely, this is what he pled to in order to avoid trial on a more serious charge.; 3/20/19, 8:24 AM