Kavanaugh shows his allegiance

A Supreme Court argument on Wednesday over the detention of immigrants during deportation proceedings seemed to expose a divide between President Trump’s two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh.

  NYT

Kavanaugh knows how he got his job. Trump owns him. Gorsuch didn't have to have huge indebtedness paid off, nor have the FBI stand down from an investigation of his fitness to serve.

The question in the case was whether the federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.

“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.

But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.

Not if Trump and Kavanaugh have their way.

In April, Justice Gorsuch joined the court’s four liberal members in a 5-to-4 decision striking down a law that allowed the government to deport some immigrants who had committed serious crimes, saying it was unconstitutionally vague.

[...]

The plaintiffs [in the current case] include people who entered the country illegally, tourists or students who overstayed their visas and lawful permanent residents. Among them are immigrants who arrived in the United States legally as infants, committed minor crimes like possessing marijuana and were detained years after completing their sentences.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, concluded that the law requires mandatory detention only if the federal authorities take immigrants into custody soon after they are released.

“Because Congress’s use of the word ‘when’ conveys immediacy,” Jacqueline H. Nguyen wrote for a unanimous three-judge panel, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

Justice Kavanaugh disagreed, saying the 1996 law put no time limits on the detentions it required.

[...]

The 1996 law includes a contested phrase. It says the federal authorities “shall take into custody any alien” convicted of certain crimes, some serious and some minor, “when the alien is released.” The key word is “when.”

[...]

“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so,” [Kavanaugh] said.

Justice Breyer said the solution was to allow immigrants detained long after release from criminal custody to have bail hearings. He said those would allow immigrants who were not dangerous and who posed no flight risk to return to their communities. “The baddies will be in jail,” he said, “and the ones who are no risk won’t be.”

Justice Kavanaugh disagreed. “The problem is that Congress did not trust those hearings,” he said. “Congress was concerned that those hearings were not working in the way that Congress wanted and, therefore, for a certain class of criminal or terrorist aliens said, ‘No more.’”

Sounds to me like the case needs to be put on hold until the matter goes back to Congress for a clarification, Kavanaugh's certainty about what Congress had in mind in 1996 notwithstanding.

 ...but hey, do what you want...you will anyway.