On Tuesday the Supreme Court ruled in favor of the Trump administration in Nielsen v. Preap, allowing the Department of Homeland Security to detain illegal aliens without bond while awaiting deportation for committing crimes within our borders. The decision reversed a ruling by the Ninth Circuit Court of Appeals. It was authored by Justice Samuel Alito, who was joined by Chief Justice John Roberts as well as Justices Thomas, Gorsuch, and Kavanaugh. The ruling involved a class-action lawsuit brought on behalf of various resident aliens, including a few with Green Cards, convicted of crimes for which U.S. law mandates deportation.
The respondents challenged the Trump administration’s interpretation of the Immigration and Nationality Act, which requires DHS to take any alien convicted of a deportable crime into custody “whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” The American Civil Liberties Union (ACLU) argued the case for the immigrants and insisted that the offender must be taken into custody immediately upon release from prison (after serving his sentence for the original crime). Justice Alito disposes of that spurious claim as follows:
Especially hard to swallow is respondents’ insistence that for an alien to be subject to mandatory detention under §1226(c), the alien must be arrested on the day he walks out of jail (though respondents allow that it need not be at the jailhouse door—the “parking lot” or “bus stop” would do).… Even if subsection (c) were the only font of authority to detain aliens without bond hearings, we could not read its “when … released” clause to defeat officials’ duty to impose such mandatory detention when it comes to aliens who are arrested well after their release.
In other words, the authority to detain aliens who have committed any of the clearly delineated category of crimes covered by the statute does not rest solely on the provision relied upon by the ACLU’s attorneys, and no reasonable interpretation of that provision leads to their “when … released” argument. Justice Alito also makes it clear that the ACLU lawyers have not really attempted to interpret the text reasonably. Instead of demonstrating that the statute supports their argument, they attempt to muddle the plain text of the statute, as well as its relevant provision, by reinventing the rules of English grammar. Alito calls them out thus:
Respondents contend that an adverb can “describe” a person even though it cannot modify the noun used to denote that person, but this Court’s interpretation is not dependent on a rule of grammar.… The grammar merely complements what is conclusive here: the meaning of “described” as it appears in §1226(c)(2).… That is the relevant definition…