A Supreme Court argument on Wednesday over the detention of immigrants during deportation proceedings seemed to expose a divide between President Trump’s two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh.
The question in the case was whether the federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.
“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.
But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.
“Because Congress’s use of the word ‘when’ conveys immediacy,” Jacqueline H. Nguyen wrote for a unanimous three-judge panel, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”
Justice Kavanaugh disagreed, saying the 1996 law put no time limits on the detentions it required.
“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so,” he said.
Justice Breyer said the solution was to allow immigrants detained long after release from criminal custody to have bail hearings. He said those would allow immigrants who were not dangerous and who posed no flight risk to return to their communities. “The baddies will be in jail,” he said, “and the ones who are no risk won’t be.”
Justice Kavanaugh disagreed. “The problem is that Congress did not trust those hearings,” he said. “Congress was concerned that those hearings were not working in the way that Congress wanted and, therefore, for a certain class of criminal or terrorist aliens said, ‘No more.’”
In short, Kavanaugh is for unlimited government detention of immigrants without due process. This is the sole issue where Gorsuch dissents from doctrinaire conservatism so I don’t want to give him too much credit, but Kavanaugh is a full-bore authoritarian racist and that is why he is on the Supreme Court. It’s going to be a really great 30 years of this.