This post is part of a series on the Trump administration's policy of separating families at the border.  You can read prior posts in the series here and here.

I’ve written several times about the administration’s policy of separating children from families. In this post, I want to highlight some connections between the administration’s policy of separating children from families and another policy this administration (and the previous one) defended—the indefinite detention, without individualized bond hearings, of persons detained for immigration purposes.

In Jennings v. Rodriguez, the Supreme Court held that immigration statutes did not provide for individualized bond hearings for persons who are detained for immigration reasons for longer than six months. The Court did not, however, address whether the statutes, by allowing indefinite detentions with no individualized bond hearings, are consistent with the due process clause. Although the Supreme Court requested briefing on that question and set the case for re-argument, it ultimately opted not to address it.

Part of the government’s argument in Rodriguez for why the statutes do not offend due process was that some of the persons who are detained (specifically, asylum seekers apprehended at the border) have no due process rights at all. At oral argument in Rodriguez, Justice Kagan highlighted some of the problems with this position:

JUSTICE KAGAN: Mr. Stewart, is – is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?

MR. STEWART: It is premised on that….

JUSTICE KAGAN: Okay. If it is premised on that, I mean, Justice Scalia in one of his opinions talked about, surely, that -­that can't be right; could we torture those people, could we put those people into forced labor? Surely, the answer to that is no. Is that right?

MR. STEWART: Yeah, I should have been more precise in saying they have no constitutional rights with respect to the determination whether they will be allowed to enter the country.

JUSTICE KAGAN: Okay. So -- but they do have some constitutional rights, not to be tortured, not to be placed in hard labor...

In other words, if individuals who are apprehended at the border have no due process rights at all, then the government could apparently subject the individuals to medical experimentation, among other things. The rejoinder to that line of argument has occasionally been that there is no reason to fear that would occur; the government would never be so cruel. The fact that the administration is purposefully separating children from their families—families who are fleeing persecution and violence—without any apparent plan for their reunification should make us hesitant to dismiss the possibility of government cruelty so lightly.

Even beyond that concern, however, the government’s position in Rodriguez shares some other things in common with its policy of separating families: In Rodriguez, the government is arguing that persons apprehended at the border are not “persons” for purposes of the due process clause. And with respect to family separation, the government is arguably treating them that way, potentially in violation of international law—acting as if persons apprehended at the border are not people who are entitled to decide, for themselves, whether family detention would be better for their families.

Another point of overlap is the propriety of litigating certain claims as class actions. Rodriguez, for some reason, went out of its way to include in dicta the suggestion that the challenges to the administration’s detention policies should not be litigated as a class action. As commentators noted, Rodriguez’s language was quite broad, and in tension with other cases in which the Court has permitted class-wide litigation. The government is (unsurprisingly) seizing on the language from Rodriguez in opposing class certification in Ms. L.

Another potential point of overlap is that DOJ is relying on Rodriguez to justify not only its authority to detain children and their families as it sees fit, but also to argue that courts cannot even review questions related to the AG’s detention decisions. From DOJ’s opposition to the plaintiffs’ motion for a permanent injunction in Ms. L:

“The Supreme Court recently explained that there is no judicial review of ICE’s custody decisions regarding arriving aliens: ‘As we have previously explained, 1226(e) precludes an alien from ‘challenging a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.’”

The Supreme Court decision that DOJ is referring to is Rodriguez. Of course, Rodriguez ultimately concluded the plaintiffs’ challenges were reviewable. Rodriguez’s statement also concerned the AG’s authority to detain persons apprehended at the border, not challenges to the conditions in which persons are detained. It is one thing to say the pertinent statutes prohibit challenges to the AG’s decision about whether to detain an individual; it is another to say they prohibit challenges to the AG’s decision to detain someone without food or water, for example. Even the two Justices who would have held that “no court has jurisdiction” to review whether the pertinent statutes allow for indefinite detentions without bond hearings carved out an exception for claims pertaining to the conditions of detention. From Justice Thomas’s concurrence (joined by Justice Gorsuch):

The plurality dismisses my “expansive interpretation” because it would lead to “staggering results,” supposedly barring claims that are far afield from removal. See ante, at 9 (describing lawsuits challenging inhumane conditions of confinement, assaults, and negligent driving). But that is not the case. Unlike detention during removal proceedings, those actions are neither congressionally authorized nor meant to ensure that an alien can be removed. Thus, my conclusion that §1252(b)(9) covers an alien’s challenge to the fact of his detention (an action taken in pursuit of the lawful objective of removal) says nothing about whether it also covers claims about inhumane treatment, assaults, or negligently inflicted injuries suffered during detention (actions that go beyond the Government’s lawful pursuit of its removal objective). Cf. Bell v. Wolfish, 441 U. S. 520, 536–539 (1979) (drawing a similar distinction).

***

The overlap between Rodriguez and the administration’s forced separation of children is striking. But it also underscores two important points—one is how prior administrations, in arguing for expansive authority over immigration and immigration detentions, created environments that were ripe for abuse, and have enabled some of this administration’s abuses. Take Rodriguez, which sought to impose bond hearings for immigration-detentions that lasted more than six months. (Many detentions during the Obama administration lasted that long, with some lasting several years.) As I wrote last spring, the Trump administration, under then-DHS Secretary John Kelly, promulgated several executive orders announcing its intention to detain many more people for immigration-related reasons. And, in doing so, it was going to prolong detentions even further:

[T]he Trump administration’s policies will cause even more delays and more backlog as ICE seeks to both remove more persons, and detain more persons who are removable or inadmissible.  As ICE attempts to effectuate these policies, the number of cases pending before immigration courts will rise.  So too will the length of detentions.

Rodriguez will address whether the deficiencies in the current system require the government to offer bond hearings every six months to justify prolonged immigration-related detentions. Trump’s executive orders make that question, and the Court’s resolution of it, even more significant.  

One implication of the Trump administration’s policies was gutting many of the existing protections that immigration law affords. As Britany Riley and I noted:

The administration’s position on the “solution” to lengthy immigration detentions—go home— offers another way to think about the separation of powers issues in the case. Their position illustrates how the structure of immigration law allows an aggressive executive branch to render meaningless the few protections that immigration law affords, simply by overwhelming the immigration system and making it too painful and difficult for noncitizens to avail themselves of the protections contained in immigration law.

The other point that Rodriguez drives home is that courts, and the Supreme Court in particular, have played a part in enabling an abusive and excessive immigration system. Courts signed off on gross expanses of power, even when there were indications that that power was being abused, or at least that there were risks that the power would be abused. The government has long said to courts, in the immigration context, “trust us; it won’t be that bad.” The Obama administration initially argued Rodriguez, and its position was that indefinite detentions of persons for immigration-related reasons are consistent with both statutes and the Constitution. Their argument, like so many arguments of prior administration, have traded on the implicit promise that they would exercise their powers responsibly and humanely, which laid the groundwork for those powers to be abused by administrations without those qualities. If the Trump administration accomplishes one thing, it should be that courts take more seriously the possibility that deferring to the executive branch on immigration, or expanding the executive branch’s power over immigration without sufficient checks, will lead to worst case scenarios. It arguably already has.

@LeahLitman

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