If someone is an incorrigible sex offender—the kind of person a Kansas law labels as part of “a small but extremely dangerous group of sexually violent predators”—the Constitution permits a state to detain them for treatment that could last years. Yet, even these most reviled individuals enjoy certain protections. As the Supreme Court explained in Kansas v. Hendricks, such confinement must take place “pursuant to proper procedures and evidentiary standards.”
Nearly two years ago, the United States Court of Appeals for the Ninth Circuit held that many immigrants must enjoy similar protections. Next Tuesday, the Supreme Court will hear a case that could strip those protections away, effectively leaving those immigrants with fewer rights than convicted sexual predators.
In fairness, it is unlikely that there are five votes in Jennings v. Rodriguez that will outright declare that immigrants being detained while they are awaiting deportation proceedings have no due process rights against the government. Nevertheless, there is a very good chance that the Supreme Court will force these immigrants to endure months or even years of detention, even if they present no risk to the public and even if they ultimately are allowed to remain in the country. At the very least, the Ninth Circuit’s opinion looks very unlikely to stand.
Rodriguez involves several groups of non-citizens who are caught up in deportation proceedings, including foreign nationals convicted of crimes (some of which are very minor), and some foreign nationals who are detained at the border. About of third of these individuals ultimately prevail if they challenge the government’s decision to remove them from the country.
These individuals can be held in detention for a very long time while the question of whether they are allowed to remain in the country is adjudicated. One individual was held for 1,585 days — nearly four and a half years! — while his case winded through the immigration system. On average, the individuals at the heart of this case spend 404 days in detention.
The Ninth Circuit’s decision requires the government to “provide periodic bond hearings every six months” to these individuals. At those hearings, the government must prove by “clear and convincing evidence” that a detainee is either a flight risk or a danger to the community, or else they must be released while their case is still pending.
It is all but certain that this decision will be rejected by the Supreme Court. The Court heard oral arguments in this case last term — back during the period when Senate Republicans were holding a vacancy on the Supreme Court open until Donald Trump could fill it. Yet the justices never handed down a decision, instead scheduling the case for reargument in October. That’s a fairly certain sign that the Court split 4-4, most likely along party lines.
Now that Neil Gorsuch occupies Court’s ninth seat, however, he holds the tie-breaking vote. And Gorsuch’s record suggests that he will side with the Court’s conservative bloc, and potentially even call for a position well to the right of the Court’s median member.
Yet, while the plaintiff class in Rodriguez is all but certain to lose before the Supreme Court, it could matter a great deal how they lose.
Although the Ninth Circuit strongly implied that it would be unconstitutional to detain someone for more than six months without a bond hearing, it did not technically reach this constitutional question. Instead, it decided to construe the relevant immigration statutes to implicitly contain a bond hearing requirement. These constructions of the statutes were, admittedly, quite a stretch — perennial swing Justice Anthony Kennedy labeled part of the Ninth Circuit’s opinion a “very odd interpretation of the statute.”
So it is possible that the Supreme Court could just declare the Ninth Circuit’s interpretation of the law mistaken, and send the case back down to resolve the constitutional issue.
That outcome seems unlikely, however, because the justices specifically asked for briefing after oral argument on the constitutionality of the statues. This suggests that the Court believed that sending the case back down on this narrow grounds would be a waste of time, and that it should instead resolve the constitutional question itself. Should five members of the Court agree that the Constitution does not require a bond hearing or some similar due process protection for immigration detainees, that could leave these detainees in a worse position than sexual predators.
Though Hendricks — the case dealing with sexual predators — did not lay out specifically how much process is required before a repeat sex offender can be civilly detained, the Kansas statute at issue in that case provided a great deal of protection — including a trial prior to commitment, annual review of the commitment decision, and a right to petition a court for release.
A third option, and perhaps the most likely one, is that the Court will leave open the possibility that immigration detainees can challenge their detention, but only on terms that would be so onerous that many detainees would gain little benefit from such a challenge. At oral arguments, both Chief Justice John Roberts and Justice Samuel Alito suggested that it was wrong for the courts to consider the rights of many similarly situated immigrants together as a class, and that each individual immigrant who wishes to challenge their detention must bring their own petition asking for individual relief.
This solution, however, would require each individual detainee to either obtain counsel — something that would, itself, be a daunting task — or to bring their petition without the benefit of a lawyer. Petitions of this kind, moreover, take months to resolve — Ahilan Arulanantham, the ACLU attorney arguing the case on behalf of the detainees, warned that they take “about 19 months” to resolve in one judicial circuit.
So, even though Roberts and Alito’s suggestion would leave detainees with a theoretical way to challenge their detention, in many cases that challenge would take longer than the actual length of the detention itself.
With Gorsuch in the driver’s seat, in other words, Rodriguez is likely to bring very bad news for people stuck in immigration detention.