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Obama administration argues before Supreme Court to limit immigrants' rights

After enduring years of withering criticism from Republicans for allegedly defying and twisting the law to go easy on immigrants, the Obama administration was at the Supreme Court on Wednesday urging the justices to strike down a court decision granting regular hearings to many migrants jailed on immigration grounds.

The Obama Justice Department's law-and-order stance in the case took on added real-world significance with Donald Trump's victory in the presidential election earlier this month. Trump campaigned promising a broad crackdown on illegal immigration, something that could be even more onerous for foreigners if the federal government's position prevails.

Acting Solicitor General Ian Gershengorn argued that the 9th Circuit Court of Appeals distorted immigration statutes when it ruled last year that many immigrants in prolonged detention are entitled to hearings before immigration judges every six months.

"The 9th Circuit undid that legislative balance," Gershengorn complained, repeatedly asserting that the appeals court essentially invented a "one-size-fits-all" policy guaranteeing bail hearings that lawmakers never authorized. "This was a deliberate, categorical judgment by Congress."

The case seemed to split the shorthanded high court along its usual ideological lines, raising the possibility that the eight current justices might hold a decision until they get a ninth colleague nominated by Trump and confirmed by the Senate, perhaps next spring. However, there are several different groups of immigrants at issue in the case and there appeared to be more agreement among the justices about how to treat certain groups, such as criminals.

Another possibility would be to reject the 9th Circuit's ruling, but dodge the broader constitutional question of whether all immigrants in extended detention have a right to bond hearings and at what point.

When Gershengorn said the vast majority of immigrants get resolution of their cases by an immigration judge within 14 months and any appeal within 19 months, Justice Sonia Sotomayor seemed to think that was too long for people to sit in jail without a possibility of bail.

"We are in an upended world when we think 14 months or 19 months is a reasonable time to detain" someone, Sotomayor said.

Justice Stephen Breyer seemed to agree, noting that some immigrants who serve time on criminal charges could find their stay behind bars extended. “You get out of jail … but you’ve got four more years of punishment?” he asked.

In its ruling last year, the 9th Circuit panel said it was reading the law to permit such hearings because reading it to prohibit them would raise constitutional issues about detaining people indefinitely without due process.

That approach led to sparring between Chief Justice John Roberts and Justice Elena Kagan, after he suggested that perhaps the case should be returned to the 9th Circuit to have them address the constitutional issue directly.

Kagan said it was fairly obvious that the appeals court panel thought the Constitution prohibited detaining foreigners indefinitely without a hearing.

“Maybe they should have had the courage of their convictions,” Roberts replied tartly. “If they [thought] it was unconstitutional they should have said so rather than stretch the principle of constitutional avoidance to the lengths that they did.”

While Roberts has sometimes endorsed unusual readings of the law in order to avoid thorny questions, he suggested Wednesday that the justices shouldn't be in the business of redrafting laws.

"We can't just write a different statute because we think it's more administrable," he said.

Justice Samuel Alito seemed to agree, calling it “a pretty tough argument” to read the law’s provisions to allow for bond hearings.

The Obama administration argued that immigrants stuck in prolonged detention do have a way to contest it: go to a federal court and file a habeas corpus petition.

But the American Civil Liberties Union’s Ahilan Arulanantham, who argued for the detained immigrants, said that wasn’t a practical solution.

“This is a class of mostly unrepresented people … Most of them cannot file a habeas petition,” he said. The ACLU attorney also noted that the Supreme Court doesn’t make criminal defendants seeking release on state or local charges go to federal court for a habeas ruling, a process that usually takes months to resolve.

The Supreme Court ruled in 2001 that immigrants with final orders of deportation generally could not be held for more than six months in jail, unless their deportation is imminent. However, the court was not explicit about whether that rule applied to immigrants in protracted proceedings before immigration courts.