Supreme Court Issues Unusual Order in Pending Landmark Immigration Case

In November, the Supreme Court heard a class-action challenge brought forth by thousands of immigrants, many of whom are living in the United States legally, who were kept in detention without a real opportunity to vouch for their release.

As it stands, federal law grants immigration authorities a great deal of leeway in measures they may take to detain foreign-born people.  The Supreme Court’s task was to determine what limits may exist to stymie that authority.  On December 12, 2016, the Supreme Court issued an order in this still-pending case, asking lawyers for the federal government and the American Civil Liberties Union (ACLU) to file a new round of legal briefs addressing whether the Constitution would require a hearing in front of a judge—or even a release, in the event that the government fails to present strong enough evidence that the person shouldn’t be released.

At the center of the case is Alejandro Rodriguez, who was a year old when his parents brought him to the U.S. from Mexico, and 9 when he became a legal permanent resident.  After running into trouble with the police for a joyriding and a minor drug offense, Rodriguez was soon placed in immigration detention for three years and faced deportation.  Due to his convictions, he was subject to “mandatory detention” under immigration law and was therefore denied a chance to stand in front of a judge nor ask for release on bond.

After the November hearing, even the Supreme Court’s more conservative members seemed to be opting for a narrower ruling base on current immigration law and a prior appeals ruling Jennings v. Rodgriguez, that resolved the case in favor of the detainees.  Justice Anthony Kennedy is rumored to have played a role in a strange order earlier in 2016, which called for additional briefing in a high-stakes case pitting religious liberty against contraceptive coverage under the Affordable Care Act.  In that case, decided just a few months after Justice Antonin Scalia’s death, the court did not have a clear resolution, leaving the case to linger in the lower courts for months, and possibly years, to come.

Speculations have hinted at a motion on the part of the Supreme Court, signaling a desire to not split 4-to-4 in a case that could very well implicate the authority of the incoming Trump administration, especially in an area like immigration, which was a linchpin in the president-elect’s campaign.  The court’s December 12 order suggests the court wasn’t yet satisfied with either party’s position in the matter.  Either way, the order shows signs of limiting the president-elect’s executive powers to detain certain noncitizens facing deportation.