Immigration and Customs Enforcement agents have the power to arrest people who aren’t US citizens and detain them for months or years, based on past convictions, with no chance of release on bond. They can do this even to green card holders, and even if the convictions were fairly minor and the immigrant completed the sentences (or paid the fines) years ago.
That’s what the Supreme Court ruled Tuesday in the case Preap v. Nielsen. In a 5-4 ruling along ideological lines, the Court’s conservative majority overruled a Ninth Circuit ruling that tried to limit which immigrants would be subject to mandatory detention without bond — something that a 1996 immigration law requires for immigrants with certain criminal histories or suspected terrorist ties.
The court’s decision doesn’t create any new powers for ICE. In most of the country, immigrants were already ineligible for bond hearings if they were picked up for long-ago crimes, and often they were consigned to months of detention as they languished in a historically large court backlog. It just ends a brief period in which the West Coast, home of the Ninth Circuit, was the exception to that rule.
Instead, the ruling is noteworthy mostly because of the court fight it sets up down the road.
The court’s liberals appear increasingly worried that the mandatory-detention law itself is unconstitutional. “I fear,” wrote Justice Stephen Breyer in a dissent for the Court’s four liberals, that Tuesday’s ruling “will work serious harm to the principles for which American law has long stood” — principles that say that, as a rule, the government can’t detain anyone indefinitely without showing cause and that people who have served criminal sentences can’t be summarily reimprisoned for the same crime.
Those principles don’t hold in quite the same way when it comes to the immigration system — even though detention and deportation may seem as harsh as criminal punishments, they’re technically part of a civil system that doesn’t give the same protections to defendants. But as immigration enforcement has swelled in the 21st century, that’s started to seem to some like cognitive dissonance.
By Dara Lind for V O X
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