Justices Kavanaugh And Gorsuch Square Off In Debate Over Detention Terms

In deliberations on Wednesday on the case Nielsen v Preap, The Wall Street Journal reports that justices of the Supreme Court challenged claims by the Justice Department that federal law requires the mandatory detention of certain illegal immigrants that Homeland Security agents arrest years or even decades after their prison sentences have ended.

The highlight of the debate was the contradictory positions taken by President Donald Trump’s appointments to the court, Justices Neil Gorsuch and Brett Kavanaugh. Gorsuch called for limitations on the government’s power, disagreeing that the government could exercise the authority to detain these immigrants indefinitely without due process of law. Meanwhile, Kavanaugh argued that the spirit of the law was intended harshness toward the perpetrators and as such, the intended acerbity of the law should be honored.

In discussing a particular detainee, Justice Gorsuch asked, “Thirty years, and the government was aware of him the entire time and chose not to act… Is there any limit on the government’s power?”

Justice Kavanaugh responded that severity was the entire point of the law.

“What was really going through Congress’ mind in 1996 was harshness on this topic. Is that not right?”

Justice Brett Kavanaugh

The law in question is the Illegal Immigration Reform and Immigrant Responsibility Act passed by a Republican-controlled Congress in 1996 during the Clinton administration. The statute allows for an immigrant to be detained indefinitely by the federal government after their prison sentences are completed for a broad range of crimes “from serious felonies to misdemeanor offenses involving moral turpitude and simple possession of a controlled substance.”

The language of the law requires the Department of Homeland Security to put these imprisoned immigrants into mandatory detention “when they are released” from prison. The lower courts have disagreed over whether that meant that federal agents were required to detain the covered individual immediately upon release from prison or at any time thereafter.

ACLU lawyers for the immigrants have argued that federal agents have abused their power by suddenly arresting immigrants years after their confinement for minor offenses and holding the accused indefinitely, leaving entire families without support or any contact with the accused. They have argued that if the federal government fails to retain targeted immigrants upon release from prison, that the individuals are entitled to a bond hearing and due process of law. Arguments by government lawyers focused on immigrants who had been released then later committed violent crimes.

The rest of the court appears to be split in their thinking as well.

“Every triple-axe murderer gets a bail hearing,” Justice Beyer noted. “So why not allow these aliens the chance to show an immigration judge that they are no threat to society and will show up for their hearing date?”

Justice Alito, however, argued that “Congress, wisely or not, thought this class of aliens was dangerous and they should not be trusted. Bail hearings were unreliable.”

A ruling on the case is expected by next summer.

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