Last week, Justice Brett Kavanaugh heard oral arguments for the first time and gave us a hint at how his confirmation may affect immigration law. On Wednesday, he participated in oral arguments for Nielsen v. Preap, and if his questions and statements during at the time indicate what he’ll decide, he’s going to be a supporter of the government’s authority.
Nielsen v. Preap is a class action suit brought by a group of detained immigrants who question the legality of their detention. A provision of the Immigration and Nationality Act applies to “criminal aliens” convicted of a handful of crimes are released from prison, and it states that the Department of Homeland Security (DHS) shall take them into custody “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”
At question is the meaning of “when” in this case. Does it mean that DHS must detain the immigrant immediately after his or her release from prison, or does it mean that it could happen at any point after the person’s release—days, weeks, months or even years later?
Zachary Tripp’s argued the latter position for the government and got push back from expected and unexpected sources. Justice Sonia Sotomayor asked Tripp, “So you don’t see any sense of urgency in your acting, no sense of encouraging you … in some way to actually do what the statute says?” She then pointed to a two-year transitional rule enacted by Congress that led to the mandatory detention policy and wondered why Congress would see such a thing as necessary if it had the discretion “to pick up an alien whenever you want anyway.”
Trump appointee Neil Gorsuch pursued Sotomayor’s line of questioning. “Is there any limit on the government’s power?” he asked. When Tripp tried to get around Justice Stephen Breyer’s question whether the government could detain someone on his death bed 50 years after serving time for stealing bus transfers, Gorsuch pressed him. “Justice Breyer’s question is my question, and I really wish you’d answer it.”
Judge Kavanaugh focused on Congress’ intent when it passed the law in 1996. “What was really going through Congress’s mind in 1996 was harshness on this topic,” he said. He seemed to view “when” as indicating where an action should fall in a sequence and not as a time frame, something he noted that Congress did not specify in any chronological terms. “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 told Cecillia Wang, the lawyer representing the immigrants in the case.
His questions suggested that he felt Congress had given the law absolute leeway and that it wasn’t the court’s role to constrain it. As Jennifer Chacon wrote at SCOTUSblog, “Justice Brett Kavanaugh’s questioning … telegraphed clear support for the government’s position,” and if his efforts to factor in the intent of lawmakers affects how he rules, that doesn’t bode well for future immigration-related cases, particularly appeals of overturned measures initiated by the Trump Administration. Obviously, different sets of facts will influence his thinking, but if he’s inclined to give weight to the problem the government was trying to solve and the deliberately harsh intent behind those efforts, it appears very possible that he’ll support the government’s authority.