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Peter Margulies, Mar. 20, 2019
"The Supreme Court’s March 19 decision on in Nielsen v. Preap rejected challenges to mandatory detention of certain noncitizens—“aliens” under the Immigration and Nationality Act (INA). Generally speaking, mandatory immigration detention is an exception to the rule that confinement requires an individualized showing of flight risk or dangerousness. Justice Samuel Alito, writing in Preap for five justices, concluded that the INA required detention for a broad range of aliens, including those who had been released from criminal custody years before their immigration arrests and had lived uneventfully in the community with their families for that entire period. Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, dissented, citing the familiar canon that a court should construe a statute to avoid serious constitutional questions. While Justice Alito’s opinion dealt solely with the INA, the substance and tone of his opinion suggested that future constitutional challenges to mandatory immigration detention would face formidable obstacles.
... Preap’s reservation of constitutional issues for another day masks its substantial practical effects. Because of the Supreme Court’s decision, the government will have more power to detain more people without even a chance at bond. That is troubling in a constitutional system that generally requires an individualized showing as a predicate for detention. Some as-applied challenges may succeed; how many will do so depends on how robustly courts construe constitutional safeguards against arbitrary detention. But those as-applied challenges will turn on case-by-case contests in which detainees’ chronic lack of access to legal representation will pose severe limits."
Peter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National Security Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York: NYU Press, 2010).