Going back to the Good Old Days, when rights varied with skin tone.
In a decision that only a "textual originalist" could love, the Supreme Court ruled 5-3 yesterday (with Elena Kagan recused) that US immigration law allows non-citizens to be detained for years without ever getting a bond hearing. The Supremes overturned a 2015 decision by the 9th US Circuit Court of Appeals which held that immigrants in deportation proceedings are entitled to a bond hearing once they've been detained for six months, and then every six months afterwards. The SCOTUS majority in the case said otherwise, with Samuel Alito writing the opinion. (Kagan recused herself, since she had worked in Obama's Solicitor General's office when the case was first argued.) This was actually a narrow opinion on whether the 9th Circuit had correctly interpreted federal statute in setting out those rules for bond hearings -- and the majority held it did not -- so the actual constitutionality of holding immigrants without bond hearings was sent back for the lower court to decide. So there's a little good news, at least: This isn't the final word on the question. You might assume that even in immigration courts, people had habeas corpus rights, but this is Trump's America.
The immediate effect of the ruling is to allow indefinite detention of some asylum seekers and even of green card holders who the government wants to deport due to minor crimes, without any hope of release on bond while their cases are decided. The Justice Department had argued that requiring bond hearings every six months had led to a backlog in immigration courts, when the administration's priority is to deport as many foreigns as humanly possible. The New Cruelty demands that, once imprisoned, no immigrant ever gets out, although as NPR's Nina Totenberg noted, "When their cases are ultimately decided, 70 percent of the asylum-seekers and 40 percent of the legal U.S. residents win." The length of detention for immigrants awaiting decisions on their status works out to 13 months, on average, but some detainees are literally locked up for years without a chance to argue that they should be bonded out.
That was the situation for the lead plaintiff in Jennings v. Rodriguez the class-action suit the Supremes ruled on yesterday: Alejandro Rodriguez was a legal immigrant from Mexico who was brought to the US as a baby. The government wanted to deport him because he had two convictions on non-violent charges, misdemeanor drug possession and -- we swear we are not making this up -- "joyriding." Rodriguez was detained for three years without a hearing, which you might think isn't supposed to happen in the USA. He was eventually released, but the class action suit went forward.
When the case goes back to the 9th Circuit, that court will decide two issues: whether the immigration system's indefinite imprisonment is constitutional in the first place, and whether the case is eligible to be argued as a class action. In some ways, that latter point may be just as important as the constitutional question, since as Stanford Law professor Lucas Guttentag points out, very few of the 40,000 immigrants affected by Tuesday's SCOTUS ruling have their own attorneys. As it is, thousands of immigrants who might have had a chance at bail will now stay imprisoned.
Justice Stephen Breyer delivered a supremely pissed-off dissent (see page 49 of the PDF linky there) from the bench. Breyer began by calling bullshit on the legal fiction that because asylum seekers haven't been formally approved to enter the USA, or if the government decides that criminal offenses render legal immigrants ineligible to stay in the country, they aren't really entitled to due process under the Constitution:
We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. 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.The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation.
As Friend of Wonkette (and Donna Rose's onetime babysitter) Charlie Pierce says, Breyer's dissent sounds as if it comes from "an America that once was," an America that existed maybe 20 years ago, when it was assumed everyone was entitled to due process. America has become, quite simply, a far crueler place, and we've let it happen in the name of "keeping us safe." Pierce relays this horror story from the carceral state, courtesy of the American Civil Liberties Union, one of those old-fashioned groups resisting the New Cruelty:
