Law360 (partially behind a paywall) has published an article covering one of the cases at oral argument during newly minted Justice Kavanaugh's first appearances on the Supreme Court. The case revolves around the government's right to detain without bond certain categories of aliens — most particularly alien criminals — once taken into custody by immigration agents. (My colleague Andrew Arthur addressed the statutory issues in this case earlier today.)
The plaintiffs, led by American Civil Liberties Union (ACLU) lawyers, argue that to pass constitutional muster, a reasonable construction of the statute requires agents to take an alien into custody at a time reasonably immediate to the crime on which removability is based — such as, for instance, upon completion of his sentence — else, bond hearings should be both permitted and required. The government has pushed back against this view, arguing that the statute does not fetter its rights to detain without bond once custody is assumed, no matter when the custody occurs.
Apparently Justices Breyer and Gorsuch both pressed the government on that position. Law360 quotes Breyer as asking, "So you think a person, 50 years later, who is on his death bed, after stealing some bus transfers, that the attorney general shall hold him without bail, even though in this country a triple ax murderer is given bail, a hearing?" That, of course, is a preposterous stretch of the government's position (and undoubtedly deliberately so, to probe the boundaries of the government's position).
But consider the flip side, as represented by the ACLU. They argue that immediacy to the crime is the critical factor when considering whether a bond hearing should be required. It doesn't take Nostradamus to predict, however, that an "immediacy" requirement would be subject to years of nitpicking litigation that no one but lawyers would love. Exactly how immediate is "immediate" for purposes of triggering the bond requirement?
I find this proposed benchmark deeply amusing, and suspect that if Congress had enacted the bond statute using such a phrase, the Court might very well find it "unconstitutionally vague".
But there is another, more disingenuous, aspect to the ACLU's position: Even as the organization argues in favor of an "immediacy" benchmark, it and other alien advocacy groups have moved heaven and earth to make it impossible for federal agents to assume immediate custody of alien criminals.
What is the best, most immediate, and safest way to take custody of alien criminals? Clearly, when they are being released from state or local custody at prisons and jails. Yet the ACLU and its cohorts have threatened state, city, and county police and correctional officials with lawsuits if they elect to honor immigration detainers. They have also stirred up the passions of progressives in state and local legislative bodies to enact "sanctuary" rules making it even harder to quickly assume custody of alien criminals in the safety of a confined environment.
As a result, such aliens are released to the streets and federal agents are left to initiate after-the-fact investigations to locate the aliens and assume custody, if and when they find them. Will whenever this occurs be "immediate" enough to satisfy the ACLU? Almost certainly not. The whole thing takes on the preposterous nature of Lucy pulling the football from Charlie Brown.
If the Court is inclined to accept such a benchmark (and I truly hope it won't), should there not be a "stop the clock" rule in place saying that if a state or local jail declines to honor the detainer, then the notion of "immediacy" is suspended unless and until the alien is once again in custody? Isn't that a more sane approach to the subject given that it's not immigration agents' fault when they are unable to assume custody at the first reasonable opportunity, which is the jail?
Consider also what will happen if the Court adopts the "immediacy" rule urged on it by the ACLU to guide the need for bond hearings. My guess is that not only will there be years of litigation on what constitutes immediate custody, but that even when bond hearings are granted, we can count on the ACLU and other open-borders advocacy groups to start pulling on the next thread in the immigration enforcement sweater by bringing constant suits or habeas corpus actions alleging that unless immigration judges set absurdly low bond amounts at these hearings they have engaged in arbitrary and capricious behavior.
I would like to think that the Court will see through the charade and understand what's at stake, but I have my doubts. I already begin to suspect that Justice Gorsuch may prove to be a sheep in wolf's clothing, if his recent concurring opinion vitiating aggravated felony "crimes of violence" as unconstitutionally vague proves any yardstick to future behavior.