The Supreme Court sometimes seems like Plato’s cave—a place where events of the outside world cast only faint and distorted shadows. Nonetheless, no justice of the Court since at least John Marshall has taken the bench without a lively appreciation of presidential politics. Without it, you just don’t get there.
So what do the four conservative justices think of America’s president-elect? At least some of them seem like highly principled conservatives—and the new leader of their party is neither. He seems to many instead like a cross between Huey Long and Uzbekistan’s late dictator Ismail Karimov, a blustering tyrant determined to govern by a Tweet of iron.
Do they worry about the hands that will soon control the fearsome mechanism of Immigrations and Customs Enforcement and its parent Department of Homeland Security, as well as the F.B.I. and the Bureau of Prisons? Does the prospect alarm them?
As the University of Texas’s Stephen Vladeck explained recently in Just Security, this Term is likely to be quite consequential for the ways in which the United States treats non-citizens within its borders. Some of these cases may carry a hint of the unspoken reaction of the Court’s right bench. The first case, Jennings v. Rodriguez, concerns whether aliens being detained pending deportation are entitled to a bail hearing and to release while their cases (or their appeals) are pending. The second, Ashcroft v. Abbasi, asks whether official immunity would shelter a government policy of detaining aliens in abusive or sub-standard conditions—making them so miserable that they will go on their own.
Let’s remember the vast scale of what the new administration proposes to do in the immigration area. On November 13 of last year, The New York Times ran a headline saying “Donald Trump Appears to Soften Stance on Immigration.” This “softer” position, God save the mark, is a mere threat to deport 2 to 3 million human beings—more people than live in any one of at least 14 American states. Many of them will have families and ties to their community. This is not “softness”—indeed, it skirts criminality. Deportation on this scale—especially when targeted at certain national origins or ethnicities––risks being considered “forcible population transfer”—an emerging crime in international human-rights law.
Couple this dangerous scale with the issue of what will happen to these people before they are deported. The tastefully named “Operation Wetback” in 1954 was the last mass deportation scheme in U. S. history; Trump has praised it as an example to be followed.
It led to the forced deportation, with little or no due process, of as many as 1.5 million Mexican citizens in the U.S.—and even to many U.S. citizens of Latino origin being rounded up and marched across the border for the “offense” of not carrying their birth certificates. Some detained Mexicans and Mexican Americans were held at crude detention camps in the desert; others were dropped off near the border and left to find their own way “home.”
A massive deportation today would require similar logistics—buses or trainloads full of prisoners, camps (perhaps, the government has hinted, on abandoned Army bases). And once prisoners were there, the government would face a dilemma. Because the Fifth Amendment’s Due Process clause applies to all “persons” in the United States. The Supreme Court has repeatedly warned that “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”
The process they get can be pretty sketchy. Some categories of aliens—those arrested near the border without documents, those who have been removed before, or those convicted of “aggravated felonies”—are subject to a set of procedures that Shoba Sivaprasad Wadhia of Pennsylvania State University Law School has christened “speed deportation.” In theory, these processes can be completed in days or weeks. Others, by statute, are entitled to a full hearing in front of an immigration judge and an appeal to the Board of Immigration Appeals. Those courts have already buckled under the flow of cases spurred by the Obama Administration’s policies, with immigrants waiting a year or more for hearing dates. Quintupling the caseload will guarantee make that worse.
Even the “speed deportation” candidates, however, are at least formally entitled to something more than quick bus ride to the border. Aliens arrested as “removable” may actually have claims to bar removal. Some (as noted above) may actually be U.S. citizens or lawful residents. Others may be candidates for political asylum (genuine asylees by law cannot be returned to their countries of origin). Some may have been detained because of a confusion of identity. Some may have other equitable reasons that would lead the government to allow them to stay. They must have a chance to contest the alleged grounds for removal, and a request of some kind for judicial review.
But many do not seek their rights. They may not know about them; they have no right to counsel—or they may find the conditions of detention unbearable. They can be offered the alternative of something something called “voluntary departure.” Under this heading, aliens agree to leave and pay their own way home. The “advantage” is that an alien who accepts it won’t be detained, and remains at least formally qualified to re-enter illegally. In practice, says my colleague Elizabeth Keyes of the University of Baltimore law school, “voluntary departure has been a bad deal” since it first began to be offered. A person who has departed voluntarily may not apply to come back for at least ten years, and may be subject to exclusion when he or she finally can apply.
Voluntary departure, however, is great for the government. Aliens might more easily be persuaded to take it if they can be kept in isolated detention compounds, far from family, community members, and potential counsel—and possibly subject to mistreatment by the jailers.
Jennings, the first case, now poses the question whether the government can hold people awaiting deportation indefinitely, pending hearings. Two Circuits—the Ninth and the Second—have held that aliens are entitled to a bail hearing and to release while their cases or appeals are pending. They based this holding on statutory language—but that is at best (for the aliens’ point of view) unclear; after hearing an argument about the statute, the Court issued an unusual order on December 15 directing the parties to brief the constitutional issue. Can the government hold aliens indefinitely if they are potentially deportable? For that matter, can it hold anyone indefinitely when the person is not charged with a crime?
(Watch the space below for outraged comments that just being unlawfully present in the U.S. is a crime. Two things: (1) It isn’t; and (2) the aliens are awaiting a civil proceeding, not a criminal trial. If they were charged with a crime, they would have a lot more, not fewer, rights—including a right to counsel and often a right to a bail hearing.)
The constitutional issue is made more portentous by the fact that a Republican Congress could decide to pass legislation stripping statutory guarantees above from some or all of the undocumented who fall into the icy hands of Homeland Security. But it can’t repeal the Constitution.
The answer to that question may mean a lot when the tumbrils of the “deportation task force” begin to roll. Immigration law already gives ICE wide powers over people who fall into its maw; will there be an appetite to give it more?
The second question is whether the government can make detention so miserable that aliens will go on their own? That issue is implicated by a case to be heard Wednesday. Ashcroft is actually three cases all arising out of the hasty post-9/11 roundup of “suspicious” seeming aliens in the New York area. These former detainees are suing the high officials—such as former Attorney General John Ashcroft—who oversaw the “hold until cleared” policy. Under this program, aliens who were grabbed (often off the street, for offenses like taking photographs) were held until the FBI satisfied itself they were no threat. Two reports by the Department of Justice itself have established beyond question that the aliens were held under brutal conditions and subjected to discriminatory treatment by officers at the federal detention center. (One, for example, was held in solitary and subject to such harassment that he could not be transferred to the general population because he was “was crying too much.”)
After thirteen years of bouncing around (under various names) in the lower courts, the plaintiffs won a preliminary victory in the Second Circuit. That court held that their complaint against the high officials could go to a full trial under a federal case called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. That case permits lawsuits against federal officials who violate “clearly established” rights. The Court has, over the years, narrowed the availability of Bivens, expanding the official immunity of federal actors. Most handicappers regard victory for the aliens as unlikely—especially since two of the Court’s moderate-liberals, Justice Sonia Sotomayor and Justice Elena Kagan, are recusing (apparently) because they had some contact with the case before they came on the Court. So a 6-2 victory for the government is likely.
But is there a single conservative justice who may be able to imagine what indefinite detention, and expanded immunity, could mean in conjunction with a new administration committed to a new version of Operation Wetback––or even the Japanese Internment?
Might such a justice write an opinion qualifying the result? Or is it business as usual at First St. NE, even as the sky falls everywhere else?