This May Be One Of The Very Few (Only?) Times I’ll Quote Kavanaugh With Approval…

Ahem — the (dated) graphic at right is NOT what this case was about.

Do I wish the decision came out the other way? Yes. But I do firmly believe. . . an extremely strict statute, signed by then-President Clinton — also means what it says, in common-sense English. [That is, it is now up to the Congress to change it — should it see fit to do so.]

So. . . as to this morning’s Nielsen v. Preap splintered timber of opinions (but reaching 5-4, for a modified version of. . . the government’s view) — I’ll say that it is quite important to understand what the case is NOT about — and here, I’ll candidly admit, Kavanaugh is right. So, let’s let him. . . go get a beer, now (imagine Matt Damon, on SNL, here!):

. . . .I write separately to emphasize the narrowness of the issue before us and, in particular, to emphasize what this case is not about.

This case is not about whether a noncitizen may be removed from the United States on the basis of criminal offenses. Under longstanding federal statutes, the Executive Branch may remove noncitizens from the United States when the noncitizens have been convicted of certain crimes, even when the crimes were committed many years ago.

This case is also not about whether a noncitizen may be detained during removal proceedings or before removal. Congress has expressly authorized the Executive Branch to detain noncitizens during their removal proceedings and before removal. 8 U. S. C. §§ 1226(a), (c), and 1231(a). This case is also not about how long a noncitizen may be detained during removal proceedings or before removal. We have addressed that question in cases such as Zadvydas v. Davis, 533 U. S. 678 (2001), Clark v. Martinez, 543 U. S. 371 (2005), and Jennings v. Rodriguez, 583 U. S. ___ (2018).

This case is also not about whether Congress may mandate that the Executive Branch detain non-citizens during removal proceedings or before removal, as opposed to merely giving the Executive Branch discretion to detain. It is undisputed that Congress may mandate that the Executive Branch detain certain noncitizens during removal proceedings or before removal. Congress has in fact mandated detention of certain noncitizens who have been in criminal custody and who, upon their release, would pose a danger to the community or risk of flight. As relevant here, Congress has mandated detention “when” such noncitizens are “released” from criminal custody. 8 U. S. C. § 1226(c)(1).

The sole question before us is narrow: whether, under §1226, the Executive Branch’s mandatory duty to detain a particular noncitizen when the noncitizen is released from criminal custody remains mandatory if the Executive Branch fails to immediately detain the noncitizen when the noncitizen is released from criminal custody. . . . [Today we hold it remains mandatory under that statute.]

In sum, all the Supremes said today is that a “truly bad” convicted (“dangerous”) criminal, may one day be before the court, re-arrested, and subject to deportation (after such process as is “due” him or her). Again, it is up to the Congress to change that, if it feels there should be an outer limit, on how long the Executive may “lie, in wait” — to re-arrest the non-citizen. [Even so, Kavanaugh’s listing above implies that there may be a case, where it would in fact violate the Constitution (the Fourteenth Amendment and/or the Fourth or Fifth or Sixth) — to re-arrest, many decades later, when the non-citizen was in his 80s, for example, and had lived here peaceably, after serving his original time, ever since. In sum, the Clinton-era statute might be unconstitutional, as applied, in that setting, under Zadvydas v. Davis, 533 U.S. 678 (2001). But that was NOT today’s case.]

That (at least to me) is. . . rather unsurprising. So the Fox News folk who couch this as some big win for Team Trump. . . are just looking for anything — anything, at all — to suggest even one little bit of Team Trump ideas. . . . have currency. The problem is. . . this idea had currency, ever since Bill Clinton was in office. I don’t think Fox wants to say Trump is so grateful to Bill Clinton’s prior leadership, on this score.

Now I’ll. . . hush.

नमस्ते

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