The Supreme Court Is Doing What It Was Rigged to Do

Charles P. Pierce
Photo credit: Alex Wong - Getty Images

From Esquire

It is profoundly wrong to believe that, just because the president* is a vulgar talking yam, his policies are not succeeding in several important places. (Most of these policies, it should be noted, differ only in how crude they are from policies that would have been pursued by most Republican presidential candidates.) For example, on Tuesday, by the now-customary 5-4 margin, the Supreme Court handed a big victory to the administration* not only in Nielsen v. Preap, the case under consideration, but also to the administration*'s excessive hostility toward immigrant populations. From the AP:

The issue in the case before the justices had to do with the detention of noncitizens who have committed a broad range of crimes that make them deportable. Immigration law tells the government it must arrest those people when they are released from custody and then hold them while an immigration court decides whether they should be deported.

But those affected by the law aren’t always picked up immediately and are sometimes not detained until years later. In the case before the Supreme Court, a group of mostly green card holders argued that unless they’re picked up essentially within a day of being released, they should be entitled to a hearing where they can argue that they aren’t a danger to the community and are not likely to flee. If a judge were to agree, they would not have to remain in custody while their deportation case goes forward. That’s the same hearing rule that applies to other noncitizens the government is trying to deport.

But the Supreme Court disagreed with the immigrants’ interpretation of federal law in a 5-4 ruling that divided the court along ideological lines. Looking at a statutory provision enacted by Congress in 1996, Justice Samuel Alito wrote that “neither the statute’s text nor its structure” supported the immigrants’ argument. The court’s conservative justices sided with the Trump administration.

In other words, if you did a two-year bid 30 years ago for whatever, and you've been the choir director in a Trappist monastery since you got out of stir, ICE can now grab you up and detain you, theoretically, for the rest of your life. The Supreme Court just dropped its imprimatur on indefinite detention.

(The plaintiff here was a guy who was busted twice for weed, did his time, and was released in 2006. Seven years later, ICE picked him up and locked him away. Since then, he won his deportation case and is still in this country.)

Photo credit: John Moore - Getty Images

During the Court's last term, Justice Stephen Breyer, who took the unusual step of reading his dissent from the bench on Tuesday, warned us that the conservative majority was warming up to remove any semblance of constitutional protections from immigrants. Dissenting in a case called Jennings v. Rodriguez, Breyer wrote:

Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

In his dissent on Tuesday, Breyer somehow resisted the temptation to say he told us so but, he did tell us so.

That is because we cannot interpret the words of this specific statute without also considering basic promises that America’s legal system has long made to all persons. In deciphering the intent of the Congress that wrote this statute, we must decide-in the face of what is, at worst, linguistic ambiguity-whether Congress intended that persons who have long since paid their debt to society would be deprived of their liberty for months or years without the possibility of bail. We cannot decide that question without bearing in mind basic American legal values: the Government’s duty not to deprive any “person” of “liberty” without “due process of law,”; the Nation’s original commitment to protect the “unalienable” right to “Liberty”; and, less abstractly and more directly, the longstanding right of virtually all persons to receive a bail hearing. I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.

We will have los desaparecidos in this country. We are on our way toward that. We probably have them now.

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