Justice Kavanaugh's Useful Concurrence in the Mandatory Detention Case

By Jason Richwine on March 27, 2019

When Supreme Court Justice Anthony Kennedy announced his retirement last summer, an intramural battle broke out among supporters of the lower-court judges who might be nominated to replace him. Whispers that Judge X was, for example, "soft on Obamacare" or "not pro-life" permeated the conservative press for weeks. A major concern was that some of the potential nominees would take a libertarian-leaning approach to immigration, finding ways to weaken enforcement rather than simply following the law as written. In fact, Politico reported that Judge Raymond Kethledge fell out of the running because his immigration rulings were seen (fairly or not) as disfavoring enforcement. The nomination eventually went to Brett Kavanaugh, and if his concurrence in last week's Nielsen v. Preap is any indication, he was a good choice for advocates of immigration enforcement.

Preap poses such a specific question that it cannot be summarized in a soundbite. Essentially, aliens taken into DHS custody are normally eligible to be released on bond as their deportation case proceeds, but detention is mandatory for criminal aliens who are considered too dangerous or too much of a flight risk. According to statute, aliens for whom mandatory detention applies should be taken into DHS custody "when the alien is released" from jail. But must these aliens be taken into DHS custody immediately in order for their detention to remain mandatory, or can some period of time elapse between the release from jail and detention by DHS? The Supreme Court ruled that detention remains mandatory even if delayed. A delay does not make an alien eligible for release on bond. (For more details on the case, see these posts by Andrew Arthur and Dad Cadman.)

Justice Kavanaugh agreed with the majority opinion, but he wrote separately to emphasize that the case was not about the government's general power to detain and deport aliens — a power that neither side questioned. In what could function as a "prebuttal" to future challenges, he reminded the Court that the government's immigration enforcement powers are well established. Kavanaugh should have used the term alien rather than non-citizen in the following text, but otherwise he is worth quoting at length:

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.

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, Clark v. Martinez, and Jennings v. Rodriguez.

This case is also not about whether Congress may mandate that the Executive Branch detain noncitizens 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. [Citations omitted.]

Of course, enforcement powers that are "longstanding" ,"expressly authorized", and even "undisputed" are still not safe from judges with a political agenda. (See the latest ruling on DACA.) Hopefully, however, when judges do attempt to weaken these powers in the future, Kavanaugh's short concurrence will be a reminder of how far the judges strayed from settled law in order to do it.