The Supreme Court ruled 5-4 on Tuesday in favor of a Trump administration policy that allows U.S. border agents to indefinitely detain non-U.S. citizens facing deportation—even after they’ve completed any criminal sentences.
The case, Nielsen v. Preap., was first heard by the court in October. The law at the center of the case—a 1996 bill known as the Illegal Immigration Reform and Immigrant Responsibility Act—dictates that the federal government can detain convicted immigrants “when” they are released from jail or prison. (If you’re wondering, that bill passed the House 278-126 and the Senate 72-27 and was signed by President Bill Clinton.)
The case heard by the justices concerned a pair of class-action lawsuits, one filed in California and one filed in Washington. One of the lead plaintiffs, Mony Preap, while not a citizen, had been a lawful permanent resident since 1981. According to the L.A. Times, Preap had two convictions for marijuana possession and was released from prison in 2006; he was then taken into custody by U.S. immigration authorities in 2013.
Preap—who successfully concluded his fight against deportation—and his team won several cases in the lower courts before the federal government appealed the case to the Supreme Court. Lawyers for the American Civil Liberties Union argued to the justices in October that the law’s language implies immigrants can only be detained immediately following their release. However, lawyers for the the Trump administration put forth that the government should retain that power indefinitely.
The arguments were heard on what was Justice Brett Kavanaugh’s second day on the bench. While he questioned the government’s lawyer on the indefinite nature of the detainment policy, he also turned around and wielded the vague language of the law against the ACLU lawyers. Likewise, Neil Gorsuch also took the government lawyers to task for the vague and over-reaching detaining powers the bill granted the government. Come Tuesday, their worries appeared to be assuaged or forgotten, as Kavanaugh and Gorsuch accompanied Justices Alito, Clarence Thomas, and John Roberts in voting in favor of the government being able to run around and detain immigrants whenever it pleases.
Justice Alito wrote in his ruling that while class-action lawsuits won’t be able to win the case, he welcomed any future individual legal challenges. Given the financial realities faced by the folks most affected by his bullshit ruling on Congress’ bullshit law, his invitation here is, like the rest of it, bullshit.