The Supreme Court on Thursday issued a highly unusual order in a pending immigration case that could limit President-elect Donald Trump’s powers to detain certain noncitizens who may be eligible to be removed from the country.
The court heard the case ― a class-action challenge brought by thousands of immigrants, many of whom are in the U.S. legally, who were kept in detention without a real opportunity to vouch for their release in front of a judge ― last month, and the justices appeared deeply torn over how to rule.
Federal law grants immigration authorities broad leeway to detain foreign-born people if they are apprehended at the border or have criminal backgrounds. The high court’s task was to determine what limits, if any, exist for that grant of authority.
The new order asks lawyers for the federal government and the American Civil Liberties Union to file a new round of legal briefs addressing whether the Constitution would require a hearing in front of a judge ― or even a release, if the government fails to present strong enough evidence that the person shouldn’t be released ― if a detention lasted six months.
Like others in his class, the lead plaintiff in the case, Alejandro Rodriguez, was detained for three years without a hearing, even though he was a lawful permanent resident facing deportation over two minor offenses, a drug charge and joyriding as a teenager.
At the hearing in November, the Supreme Court’s more conservative members didn’t seem willing to touch this constitutional issue. Instead, they seemed to be opting for a narrower ruling based on current immigration law and a prior appeals ruling that resolved the case in favor of the detainees.
“We do not have the constitutional issue before us,” Justice Anthony Kennedy warned Ahilan Arulanantham, the ACLU lawyer who argued the case. The justice authored a concurring opinion in an earlier immigration dispute that’s key to resolving the present controversy.
Kennedy is believed to have played a role in a similarly strange order earlier this year, which called for additional briefing in a high-stakes case pitting religious liberty against contraceptive coverage under the Affordable Care Act. In that case, decided a few months after Justice Antonin Scalia’s death, the court ended up punting the issue without a clear resolution.
Similar forces may be at play here, and the justices may be signaling a desire to not split 4-to-4 in a case that could directly implicate the authority of the incoming Trump administration in an area that was a linchpin in the president-elect’s campaign.
"I think it's really hard to read the tea leaves here," said Arulanantham, a recent MacArthur Foundation fellow, in an interview. He added that the justices' move on Thursday suggests "the court wasn't yet satisfied with either party's position."