The outcome of a supreme court debate over the detention of immigrants during deportation proceedings could rest on two of Donald Trump's conservative, but divided, appointees—Justices Neil Gorsuch and Brett Kavanaugh. Wednesday, the nine justices gathered to hear the administration, whose draconian stance on immigration is well-documented, appeal a lower court ruling countering its ability to apprehend immigrants awaiting deportation after having completed sentences for certain criminal convictions, sometimes years after they have been released. The government claims that the ruling frustrates its power to deport immigrants who have committed crimes. Gorsuch (who sided with four liberal justices in a similar case in April) challenged the prudence of arming federal authorities with such sweeping capacity: “Is there any limit on the government’s power?” he asked.

During just his second day on the bench after his fraught confirmation battle, Kavanaugh—the newest, and most divisive, member of the supreme court—did not share Gorsuch's concerns. Instead, he mounted a spirited defense of the law, which, when fiercely interpreted, provides a useful, pragmatic framework for Trump's promised immigration crackdown. Implemented by Congress in 1996 as a response to notions that "criminal aliens" were re-offending and failing to appear in court, the law has ultimately resulted in swathes of people being detained over minor, non-violent offenses, often decades after they completed their criminal sentences. They are then routinely held for years as their deportation cases chug through a congested system, ostensibly so they won't pose a danger to civilians, or flee. Denied a bond hearing, they cannot argue this would not be the case. Whilst critics attack this enactment of indefinite detention as a blatant infringement of basic rights, for Kavanaugh, it seems to be the cheering manifestation of a sensible law, well-executed. "What was really going through Congress's mind in 1996 was harshness on the topic," he explained.

What was going through Congress's mind when it decreed federal authorities "shall take into custody any alien" convicted of certain crimes "when the alien is released" is precisely what is being contested. The language of this law is the subject of immense scrutiny, specifically its use of the word: "when". In 2016, the 9th Circuit Court of Appeals agreed that when is not synonymous with whenever, and ruled that convicted immigrants who aren't immediately detained by immigration authorities after their sentence can't be held in indefinite detention awaiting possible deportation, and added that immigrants who were detained after concluding their sentences should be granted bond hearings to argue the case for their release. “Because Congress’s use of the word ‘when’ conveys immediacy,” Judge Jacqueline Nguyen wrote, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

Wednesday, the American Civil Liberties Union's Cecilia Wang, who is representing immigrants opposing mandatory detention, declared that detentions should only be allowed to occur within 24 hours of release from custody. Predictably, Kavanaugh was unconvinced, arguing that such a limit “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.” (Having perused the transcript, Spinter news has confirmed that, during his sparring with Wang, Kavanaugh rested on his well-worn habit of cutting challengers off mid-point.)

Despite Kavanaugh's assertions that Congress's class of 1996 did see mandatory detention as a proportionate response to crimes including marijuana possession, Justice Stephen Breyer presumed they had not predicted the rise of the Trump administration, and so, punctuating the law's glaring moral injustice, pressed a government lawyer whether it could really detain “a person 50 years later, who is on his death bed, after stealing some bus transfers” without a bail hearing, “even though in this country a triple ax murderer is given a bail hearing.”