Justice Stephen Breyer during a House Committee on Appropriations Subcommittee on Financial Services hearing to review the Supreme Court budget request for fiscal year 2016. March 23, 2015. Justice Stephen Breyer testifies before Congress in 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

Springtime decisions in the U.S. Supreme Court usually begin to reveal sharp differences among the justices. On Tuesday, a concurrence by Justice Brett Kavanaugh in an important immigration ruling struck a nerve in Justice Stephen Breyer.

In Nielsen v. Preap, the court’s conservative majority ruled the Trump administration had authority to arrest and detain without bond hearings those immigrants who had completed their criminal sentences even after they had spent years in the community. Those immigrants could be held until their removal had been decided by an immigration court.

Kavanaugh wrote separately only to say what the case was not about. In three pages, he used the phrase “this case is not about” four times, and he declared the question before the court is “narrow.” He added: “No constitutional issue is presented. The issue before us is entirely statutory and requires our interpretation of the strict 1996 illegal-immigration law passed by Congress and signed by President Clinton.”

Breyer, writing in dissent, disputed Kavanaugh’s assertion.

Brett Kavanaugh was nominated to the U.S. Supreme Court at a ceremony in the East Room. Credit: Diego M. Radzinschi / NLJ

Reading portions of his dissent from the bench, Breyer said the case is about “basic American legal values,” including the government’s duty not to deprive anyone of liberty without due process of law “and the longstanding right of virtually all persons to receive a bail hearing.”

Many of the immigrants may have been convicted of minor crimes and, after serving their sentences, put down roots in their communities, he noted.

“Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of removal,” Breyer wrote. “These are not mere hypotheticals. Thus, in terms of potential consequences and basic American legal traditions, the question before us is not a ‘narrow’ one.”

Near the end of his dissent, Breyer, again citing Kavanaugh, wrote: “To reiterate, the question before us is not ‘narrow.’” He concluded: “I fear that the court’s contrary interpretation will work serious harm to the principles for which American law has long stood.”

Justice Samuel Alito Jr., who wrote for the majority, did not in his 26-page opinion directly address Breyer’s constitutional concerns. He did say the plaintiffs could have but did not raise a “head-on” constitutional challenge to §1226(c) of the federal immigration law.

“Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges—that is, constitutional challenges to applications of the statute as we have now read it,” Alito wrote.


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