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  • Robert C. Flowers

Textualism over due process, and the avoidance of duty

*Formatting updated Oct. 25, 2023

I’ll be frank: I am mad, and I think you should be too. No, this isn’t about politicians or gun rights, taxes or religion. I am mad at the Supreme Court, because it seems that as of last February, the majority doesn’t feel like doing their job. This past February, the Supreme Court decided the case Jennings v. Rodriguez, in which they remanded the case back to the 9th Circuit based on an improper application of the Constitutional Avoidance Canon and jurisdictional issues. The Court’s interpretation of the applicable statutes functionally grants the Department of Immigration and Customs Enforcement (ICE) the right to detain people indefinitely. I still have hope that if this does come back up on constitutional issues, which it should, the Court will find the law unconstitutional. But for now, I remain mad, because it feels like Justice Alito did not have the basic human decency to state that our government shouldn’t imprison people indefinitely.

Justice Alito’s argument about the interpretation of the statute requires the belief that the detention of undocumented immigrants allowable under Sections 1225(b), 1226(a) and 1226(c) of Title 8 of the U.S. Code will be for a specific, defined purpose, and a specific, defined period of time. He also claims that the 9th Circuit tried to act as legislators in applying the canon of constitutional avoidance and should have decided the issue on non-constitutional issues. This argument rings hollow, and naïve, in light of the serious inefficiencies and violations of basic decency pervading the immigration system in our country. Our country has long held that deprivation of liberty without due process of law is legally and morally unacceptable. This doesn’t need to be reiterated, nor is that the point of this rant.

What is important to note however, in Justice Alito’s argument that the canon of constitutional avoidance does not apply, is that he is essentially avoiding his duty to protect constitutional rights. He deliberately dodges the opportunity to address the penological horror that is our country’s treatment of undocumented immigrants. And what makes it worse is just how low the bar already was, before he decided to step on it.

All that the appellants argue was the proper application of the statute, in manner that a constitutional analysis could actually stomach, is that detained (read imprisoned) undocumented immigrants should be allowed a bond hearing, if they have been incarcerated for six months and have not yet been deported. Think about that for a moment— let it sink in. The interpretation that Justice Alito found so controversial does not dispute that the Attorney General may incarcerate an undocumented immigrant for six months before they even grant a bond hearing to make sure that the detained individual shouldn’t be released on bond. This interpretation merely asks the government to grant that hearing. And yet, this interpretation of the clause is implausible to Justice Alito. Apparently, it is just not sensible in the scheme of the statute as a whole.

To be honest, I do tend to think that Justice Alito made a good argument regarding the language of the statute, however, I can’t ignore his failure to apply Constitutional Avoidance Canon where it seems completely appropriate. He refers constantly and consistently to the broad powers of the attorney general throughout the statute. What he does not mention however, even once, is how the law here, when applied under his analysis, would be rendered constitutionally grotesque (even more so than it already is). His concerns about separation of powers are well founded yet ultimately overshadowed by more important principles. Courts may not legislate and it is appropriate for the Supreme Court to prevent this. But last I checked, Congress is not allowed to legislate around the Constitution. The Supreme Court tap-danced away from addressing this by claiming that the Constitutional Avoidance Canon does not apply and remanding it to be examined over jurisdictional issues.

Firstly, Justice Alito’s argument does not make logical sense. His major point is, in layman’s terms, that only one construction of the statute makes grammatical sense. However, in order for the Canon of Constitutional Avoidance to apply, there must be conflicting interpretations of a statute. When he claimed that the 9th Circuit improperly applied the Canon, he argued that there was only one possible interpretation. However, he continued in his analysis to defeat his own argument. An entire section of his argument is devoted to vigorously debating the fact that the term “for” has only one meaning when applied to a clause of 1225(b). Justice Alito then goes on to examine what other meanings of the word could apply before arguing why they do not. Let me state that again: Justice Alito argued that the clause had only one interpretation, then listed other interpretations of that same clause. Justice Alito seems to be arguing that, because he did not agree with the other interpretations of the law, that those other interpretations did not exist. The other interpretations of the statute actually make the statute stand up to some sort of constitutional scrutiny. His interpretation doesn’t.

Secondly, Justice Alito’s ultimate conclusion about the statute runs contrary to precedent. His entire argument requires existing caselaw to not apply to these circumstances, as he consistently seeks to dispel previous constitutionally sound decisions by exclaiming them distinct from the circumstances at hand. The Court in Boudemeine v. Bush was not unclear when it held that the constitution applies to everyone within the dominion of the United States, including undocumented immigrants. As Justice Breyer noted several times in his dissent, people undergoing these deportation proceedings are held for, on average, a year without opportunity for bond or other form of release. Any time that a citizen is deprived of liberty, it must be done after they are given due process under the law. The same applies to undocumented immigrants.

And lastly, along the same vein, the direct impact of this decision runs contrary to basic principles of our constitution. The dissent by Justice Breyer already highlights this. People are being imprisoned for up to two years. They are being treated inhumanely, without an opportunity to be heard, and then summarily disposed of. The Fifth Amendment guarantees our right to not be deprived of liberty without due process of law. There is an argument to be made (at another time, in another forum) that deportation proceedings already violate Fifth Amendment principles due to their incarcerating nature and Eighth Amendment principles due to inhumane circumstances in ICE detention facilities. And this is bad enough without mentioning the dark implications of the for-profit nature of our detention of undocumented citizens.

If the Court, led by Justice Alito, is so concerned about the 9th Circuit legislating from the bench, then they should have found the law at hand unconstitutional. There would be no courtroom legislating if Congress is forced to legislate a constitutionally sound law.

I am not blind to The Court’s reasonable aversion to dropping the weight of the constitution onto an argument, but this seems well past the threshold necessitating such an analysis. If the Court applied a Fourteenth Amendment takings clause analysis in Palmore v. Sidoti, a child custody case regarding tangential race discrimination, then they can apply a Fifth and Eighth Amendment analysis to the effects of ICE detention and deportation proceedings. As a believer in our constitutional protections, I’m disappointed in Justice Alito and the majority. As a person, I’m sickened.


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