Is It Constitutional to Hold Immigrants Without Bond Indefinitely? The Supreme Court Hasn’t Decided Yet.

Just because Congress passed immigration laws that permit mandatory indefinite detention, that doesn’t mean those laws are constitutional.

[Photo: A U.S. Border Patrol agent watches as girls from Central America sleep under a thermal blanket at a detention facility run by the Border Patrol.]
Under current U.S. immigration law, immigrants can be detained—often in prison-like conditions and for years on end—while waiting for a decision about whether they will be permitted to remain in the United States. John Moore/Getty Images

This week, the U.S. Supreme Court issued its ruling in Jennings v. Rodriguez, a class action lawsuit challenging the U.S. government’s practice of detaining certain immigrants without giving them the opportunity to post a bond and be released from custody.

The outcome was not good for immigrants and those concerned about their human rights: The Court, led by Justice Samuel Alito, said that immigrant detainees, including asylum seekers and those with legal status, are not entitled to bond hearings. This means that under current U.S. immigration law, immigrants can be detained—often in prison-like conditions and for years on end—while waiting for a decision about whether they will be permitted to remain in the United States or whether they will be deported.

But just because Congress passed immigration laws that permit mandatory indefinite detention, that doesn’t mean those laws are constitutional. That was not the question at issue in this week’s decision.

So the question remains: Is mandatory indefinite detention constitutional?

And the answer to that question is “probably not.”

Unfortunately, the Ninth Circuit never got around to answering it—or even considering it. Instead, it invoked something called constitutional avoidance in order to read a right to a bond hearing into the immigration statutes.

Constitutional avoidance permits a court to choose an interpretation of a statute that avoids rendering the statute unconstitutional, but only if the statute is susceptible to more than one plausible interpretation. In other words, if a law could plausibly be interpreted in two ways—one unconstitutional and one constitutional—a court will choose the constitutional interpretation.

The Ninth Circuit ultimately interpreted the immigration statute to require a bond hearing every six months and a determination that the immigrant poses a danger or flight risk if they were to be set free.

Justice Alito rejected the Ninth Circuit’s attempt to read into the statute language that wasn’t there and ruled that the classes of immigrants at issue are not entitled to bond hearings.

So the question is: Do the immigration statutes require a bond hearing for certain classes of immigrants or not?

According to Alito, the answer is no. “Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases,” he wrote for the majority. “Instead, the canon [of constitutional avoidance] permits the court to ‘choos[e] between competing plausible interpretations of a statutory text.’”

And in Alito’s estimation, the Ninth Circuit’s interpretation that the law called for bond hearings every six months was not a plausible interpretation of the statutes.

The statutes relate to three classes of immigrants: (1) asylum seekers; (2) immigrants who have committed certain criminal offenses and are fighting removal; (3) and other applicants for admission to the United States not covered by (1) and (2).

Section 1225(b) of the U.S. Code allows the government to detain immigrants arriving in the United States if officials determine they have made some fraudulent representation or don’t have the proper documentation. If any of these immigrants indicate that they fear persecution or intend to apply for asylum in the United States, immigration law says those immigrants “shall be detained” pending a final determination of their asylum application.

The U.S. government is also allowed to detain certain immigrants who are already in the United States. Section 1226(a) of the U.S. Code says that the attorney general “shall take into custody” any immigrant who is inadmissible or who has committed certain criminal offenses or participated in certain terrorist activities.

According to the majority, “shall be detained” means just that—immigrants must be detained. And in the justices’ view, they must be detained until a decision on their asylum application is made. To them, that’s what “pending a final determination of their asylum application” means.

“Read most naturally,” Alito wrote, “sections 1225(b)(1) and (b)(2) mandate detention of applicants for admission until certain proceedings have concluded.”

Alito also pointed out that nothing in section 1226 supports an imposition of periodic six-month bail hearings.

Detained immigrants must remain detained until a final decision about their immigration status has been made. As far as the statutes go, it doesn’t matter how long it takes, according to the majority.

But that didn’t sit well with Justice Stephen Breyer—because to him, it does matter how long it takes. Nothing, he writes, suggests that Congress intended to sanction mandatory indefinite detention when it passed those immigration laws.

In his dissent (which Justices Ruth Bader Ginsburg and Sonia Sotomayor joined), Breyer dissects the meaning of the words “bail” and “detain,” and painstakingly details the history of bail, citing the Oxford English Dictionary, a 16th-century British scholar, an 18th-century historian, a 19th-century novelist, and even the Declaration of Independence—all in an effort to justify his interpretation of the statute.

It’s a bit much, to be honest, and makes it difficult to disagree with Alito’s biting criticism in his majority opinion that the dissent had a “strong stomach when it comes to inflicting linguistic trauma.”

What’s more, Alito’s wry observation that the first two-thirds of Breyer’s opinion were a “disquisition” is also reasonable. Breyer truly does go on in mindnumbing fashion for pages on end.

But eventually, Breyer gets to the point. And that point is this: There’s nothing in common law, in the history of this country, or in the legislative history of the immigration statutes at issue to suggest that when Congress passed these laws, they intended them to say that immigrants shall be detained without bail.

According to Breyer, the statutes should be read “to require bail proceedings in instances of prolonged detention,” and the Court could read the statute to require bail proceedings “without doing violence to the statutory language or to the provision’s basic purposes.”

“The Constitution’s language, its basic purposes, the relevant history, our tradition, and many of the relevant cases point in the same interpretive direction,” Breyer wrote.

“They tell us that an interpretation of the statute before us that would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution,” he continued.

Breyer’s analysis, while not strictly grounded in the text of the statutes, is certainly the more humane approach. And, ultimately, it is the more constitutional one.

The notion that Congress intended for asylum seekers to be detained indefinitely in what essentially are prisons is belied by logic, the law, and history. And the same applies to the remaining classes of citizens at issue in Jennings—those who had served out a criminal sentence and those whose eligibility to remain in the United States is uncertain.

There’s literally no one else that we detain without providing them a bond hearing. Why would we behave differently for immigrants?

It doesn’t make any sense.

The Supreme Court, having ruled that the Ninth Circuit improperly invoked constitutional avoidance, punted the case back to the appeals courts with instructions to consider plaintiffs’ constitutional arguments on the merits. This means that the court will be considering whether the statutes, which the Supreme Court has now interpreted to permit mandatory detention without a bond hearing, violate immigrants’ constitutional right to due process.

Should the Ninth Circuit rule that immigrants have a constitutional right to bond hearings—and it is probable that it will—the Supreme Court will have another chance to review the case.

It is likely that, given his conservative track record, Alito will side with the Trump administration, which has made mandatory indefinite detention a cornerstone of its immigration policy. So despite my begrudging agreement with Alito in this case that Breyer’s dissent is long-winded—or, as Alito put it, a “disquisition”—such a decision would mean I can go back to my regular routine of disagreeing with the lion’s share of his legal opinions.