Today the Supreme Court issued an order in Jennings v. Rodriguez , a case that was argued on November 30, directing the parties to file supplemental briefs on three questions by January 17, 2017. All three questions are directed at the constitutionality of various provisions of the immigration laws that permit prolonged detention of various categories of non-citizens without bond hearings. The briefing schedule is fairly extensive, allowing “friend of the court” briefs to be filed by January 27, and giving both sides the opportunity to file reply briefs, which are due by February 6.

Exercising the doctrine of constitutional avoidance as the Supreme Court did in Zadvydas v. Davis, in which the court interpreted an immigration statute to require judicial review of a detention decision because a “statute permitting indefinite detention of an alien would cause a serious constitutional problem,” the U.S. Court of Appeals for the 9th Circuit had interpreted the immigration detention statutes at issue in this case to require a bond hearing for non-citizens detained for six months, and had required the government to prove at the bond hearing that the non-citizen posed a flight risk or a danger to public safety.

At oral argument, several justices, including Chief Justice John Roberts, suggested that the case might need to be decided on constitutional grounds. The Court’s supplemental order specifically requires the parties to brief the constitutionality of several immigration detention provisions and to address whether the Constitution requires the government to bear the burden of proof in bond hearings. The order’s focus on what the Constitution requires would only be relevant if the court determines that the statutes cannot reasonably be interpreted to avoid the constitutional questions.

Especially with respect to non-citizens seeking admission into the United States, the briefs will probably discuss the exceptional plenary power doctrine of immigration law, which immunizes from judicial review laws governing admission into the United States. In 1953, in Shaughnessy v. United States ex rel. Mezei, the court emphasized the “plenary power” of the U.S. government over immigration in upholding the indefinite detention of a long-term legal immigrant who had briefly visited his native country. More recently, in 2003, in Demore v. Kim, the court again invoked the plenary-power doctrine to justify the detention of a legal immigrant convicted of a crime pending his removal.

Advocates and scholars have been waiting for many years for the court to reconsider the plenary power doctrine, which many feel is out of step with modern constitutional law. For example, as I noted in my preview of this case, it is hard to imagine that a law allowing for indefinite civil and criminal detention of citizens without a hearing would survive constitutional scrutiny. The court’s request for additional briefing suggests that Jennings v. Rodriguez may allow the justices to reconsider the immunity of immigration law from judicial review.

Recommended Citation: Kevin Johnson, Court issues supplemental briefing order in immigration case, SCOTUSblog (Dec. 15, 2016, 8:52 PM), https://www.scotusblog.com/2016/12/court-issues-supplemental-briefing-order-in-immigration-case/