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Pierce writes: "The 5-4 majority ruled that the government can detain non-citizens indefinitely, even years after they went to jail."

Supreme Court justices. (photo: Alex Wong/Getty)
Supreme Court justices. (photo: Alex Wong/Getty)

The Supreme Court Is Doing What It Was Rigged to Do

By Charles Pierce, Esquire

20 March 19

The 5-4 majority ruled that the government can detain non-citizens indefinitely, even years after they went to jail.

t is profoundly wrong to believe that, just because the president* is a vulgar talking yam, his policies are not succeeding in several important places. (Most of these policies, it should be noted, differ only in how crude they are from policies that would have been pursued by most Republican presidential candidates.) For example, on Tuesday, by the now-customary 5-4 margin, the Supreme Court handed a big victory to the administration* not only in Nielsen v. Preap, the case under consideration, but also to the administration*'s excessive hostility toward immigrant populations. From the AP:

The issue in the case before the justices had to do with the detention of noncitizens who have committed a broad range of crimes that make them deportable. Immigration law tells the government it must arrest those people when they are released from custody and then hold them while an immigration court decides whether they should be deported.

But those affected by the law aren’t always picked up immediately and are sometimes not detained until years later. In the case before the Supreme Court, a group of mostly green card holders argued that unless they’re picked up essentially within a day of being released, they should be entitled to a hearing where they can argue that they aren’t a danger to the community and are not likely to flee. If a judge were to agree, they would not have to remain in custody while their deportation case goes forward. That’s the same hearing rule that applies to other noncitizens the government is trying to deport.

But the Supreme Court disagreed with the immigrants’ interpretation of federal law in a 5-4 ruling that divided the court along ideological lines. Looking at a statutory provision enacted by Congress in 1996, Justice Samuel Alito wrote that “neither the statute’s text nor its structure” supported the immigrants’ argument. The court’s conservative justices sided with the Trump administration.

In other words, if you did a two-year bid 30 years ago for whatever, and you've been the choir director in a Trappist monastery since you got out of stir, ICE can now grab you up and detain you, theoretically, for the rest of your life. The Supreme Court just dropped its imprimatur on indefinite detention.

(The plaintiff here was a guy who was busted twice for weed, did his time, and was released in 2006. Seven years later, ICE picked him up and locked him away. Since then, he won his deportation case and is still in this country.)

During the Court's last term, Justice Stephen Breyer, who took the unusual step of reading his dissent from the bench on Tuesday, warned us that the conservative majority was warming up to remove any semblance of constitutional protections from immigrants. Dissenting in a case called Jennings v. Rodriguez, Breyer wrote:

Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

In his dissent on Tuesday, Breyer somehow resisted the temptation to say he told us so but, he did tell us so.

That is because we cannot interpret the words of this specific statute without also considering basic promises that America’s legal system has long made to all persons. In deciphering the intent of the Congress that wrote this statute, we must decide—in the face of what is, at worst, linguistic ambiguity—whether Congress intended that persons who have long since paid their debt to society would be deprived of their liberty for months or years without the possibility of bail. We cannot decide that question without bearing in mind basic American legal values: the Government’s duty not to deprive any “person” of “liberty” without “due process of law,”; the Nation’s original commitment to protect the “unalienable” right to “Liberty”; and, less abstractly and more directly, the longstanding right of virtually all persons to receive a bail hearing. I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.

We will have los desaparecidos in this country. We are on our way toward that. We probably have them now.

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+58 # DongiC 2019-03-20 13:01
Slowly our culture crumbles as the conservative judges torpedo our basic human rights. Trump has done irreparable damage to our way of life by his appointment of so many conservative judges. When the Progressives get in in 2021, they must appoint a Flock of liberal judges to offset these deleterious votes. If necessary, expand the courts and appoint a ton of progressive justices.
+36 # Salburger 2019-03-20 17:34
there is nothing conservative about these judges who ignore basic constitutional tenets, conservatism is effectively dead.
-1 # economagic 2019-03-21 08:20
No it isn't. (+bold +italic)I(-bold -italic) am conservative, but recognize that "time's arrow never flies backward," and that radical change is upon us and demands radical action, meaning action based on deep understanding of the root causes of the crisis. Latin "radix" = root, as in radish, also the original quantity in algebra. I recommend the radical essay linked in my earlier comment below.
+11 # Robbee 2019-03-21 10:13
Quoting Salburger:
there is nothing conservative about these judges who ignore basic constitutional tenets, conservatism is effectively dead.

- salute!

corporatist is a better term for federalist society judges!

corporatist judges are quite activist, when it comes to denying civil, or human, rights!
+29 # logical1 2019-03-20 19:46
What a great idea! The court has had as few as 6 justices and as many as ten. It may be time to have an eleven judge court to help eliminate
a bunch of judgement ties.
First we need a new President, then have at it.
+18 # laborequalswealth 2019-03-21 09:57
As I mentioned above, never call these people "conservatives" !! They "conserve" NOTHING. They are destroyers.
+45 # susanlno 2019-03-20 17:33
We need to stop referring to reactionary right-wingers are "conservatives. " They're not trying to "conserve" anything; their agenda is wholly destructive.
+40 # PABLO DIABLO 2019-03-20 17:44
However, immigrants take the jobs no one else wants. Like Melania Trump..
+13 # laborequalswealth 2019-03-21 09:40
Best line of the day!
+22 # Jim Rocket 2019-03-20 18:27
Wow! This is just plain cruelty. It's too bad that there aren't more Christians on the court. /s
+31 # chrisconno 2019-03-20 18:33
Can we really still be called a democracy when our judiciary is rigged with weepy whiney drunken rapists? Do they really get to continue under the premise of justice for all? Shouldn't we be thinking of our now bastardized Supreme Court as just another kangaroo court with partisan idiots arrogantly judging others? I don't understand how anybody can support the republicans and Trump at the risk of so much detriment.
+8 # treerapper 2019-03-21 07:07
We were never really a democracy. We were and are a Republic. The original Constitutional tenets were really meant for people who were landed - property owners which was yet another term for the white boys.
+15 # Jim Young 2019-03-20 19:09
It seems to me that ended up with a civil war soon after the warpage of power in the Senate, mostly, (back when the states appointed Senators), let the old pro-slavery Democrats and a few Whigs over power the will of a much larger percentage of the population as they passed the Kansas-Nebraska Act breaking the original intent of those that approved the Constitution (assuming slavery would soon enough end naturally).

My old party has now managed to corruptly deny or stall over 100 judicial appointment hearings with irrational powers of single senators to block the hearing of appointees, then change the norms when they claimed to be able to over come the backlog (they created) to get so many judges confirmed (ones the public would be unlikely to support if they knew the extent of the treachery used to restrict the choices to those they held the positions open for.

If my observations are anywhere near correct, we should demand a review of all those positions that were held open so corruptly, and let the people have an opportunity to remove them by substantial votes of no confidence.

I'd also prioritize having hearings for all those nominated but denied hearings, perhaps using Ranked Choice Voting to decide between multiple former nominees and some new ones that were considered but not formally nominated.

Perhaps all future positions should be decided by Ranked Choice Voting of at least 3 nominees considered qualified by the judicial committee.
+3 # economagic 2019-03-21 08:25
"If my observations are anywhere near correct. . . .

I think they are, and I think we should, and that course is both radical and conservative.

I had never noticed the similarity between those particular events that led to the "Civil War" and the present situation.
+23 # economagic 2019-03-20 20:11
"Justice Stephen Breyer . . . warned us that the conservative majority was warming up to remove any semblance of constitutional protections from immigrants."

Yes, and tomorrow it could be you or me if we fail to toe (sic) the party line, or step over it. :First they came for the Jews. . . . --Pastor Martin Niemoller

And why not? We have been warned about incipient fascism with increasing urgency for fifteen years. With every arrest, Global Megacorp makes money for its bankers with a little rake-off for every subcontractor along the way. The symbiotic relationship between government and business was not a keystone of fascism in its early manifestations, but by 1932 it certainly was. See "Doctrine of Fascism."

This could be a long struggle.

But check this out, which a person commenting on another website yesterday made me aware of:
+6 # dawill4 2019-03-20 23:38
Oh this is just the beginning of the Tryanny we will see from this court as they work to take rights and everything away from everyone that isn't a white rich republican male.
Don't hold your breath on gerrymandering and voter suppression either they've made it pretty clear they aren't interested in holding that part of our constitution up either.
I fear we will lose our democracy to this SCOTUS.
+11 # krallison 2019-03-21 02:16
Call it what it is - the Bought and Paid For Supreme Court.
+6 # treerapper 2019-03-21 07:11
Not surprising that the White Supremacist White Boys club part of the SC would be proponents of such anti-democracy legislation. The US has been playing with fascism for decades so there's nothing surprising in the fascist evolution of all branches of government. How do you get the SC boys to abide by Constitutional Law??? You don't if the intent is a police state aka Fascist!!!
+14 # laborequalswealth 2019-03-21 09:56
Hear hear for those pointing out that the GOP and it's flunkies are NOT CONSERVATIVES.

Progressive candidates need to make it clear that the Repubs are in fact violating the foundation of conservatism: TO CONSERVE

No real conservative would:
+ Put trillions on credit cards with nothing to show for it but piles of rubble and millions of damaged and angry people
+ Poison our land, food, water and air for short term profit
+ Ignore long-term threats like global warming, nuke plant plutonium, and the risk of nuclear war without trying to stop their destructoin (see Daniel Ellsberg's "The Doomsday Machine". Turns out "Dr. Strangelove" was a documentary.)
+ Tear up the "due process" and other clauses in a 240 year old Constitution just because it suits them. (The 14th Amendment requires due process for all "PERSONS", not just citizens.)

Keep hitting the fact that the GOP is NOT acting conservative.

BTW: If Gorsuch had any integrity as an "Originalist", he would have turned down his nomination. Where in the Constitution does it say that the Senate shall give advice and consent for a judicial nominee "except when a Presidential election is less than one year away"? Gorsuch isn't an "Originalist". He's a fascist whore. Like most of the court.
+3 # economagic 2019-03-21 15:10
Yes, and I've been meaning to ask you, whence that handle? It has a long and solid history even in classical-tradi tion economics (aka "the classical claptrap"), spotty throughout the 20th century but on the rise again.
+5 # Anne Frank 2019-03-21 14:23
The plain language of the statute says the Gestapo must arrest immigrants convicted of certain crimes "when released" from jail. The Supremes pissed on the constitution and the English language again to uphold totalitarian executive fiat. But with all due respect to Mr. Trump, the Obomber regime likewise insisted that it could arrest and detain forever without bond these immigrants, regardless of how long ago they had been released.
+6 # crosstalking 2019-03-21 18:38
One of the very last lines of the essay is particularly chilling: "We will have los desaparecidos in this country. We are on our way toward that. We probably have them now."

This is another step in denying immigrants their humanity. Using words like "infesting" and "invasion" when talking about them makes them sound like cockroaches. As intended.

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