On November 30, the US Supreme Court heard oral argument in Jennings v. Rodrigueza case that arises from three categories of immigration detention in which the government has been holding tens of thousands of non-citizens in custody (and without periodic review) for extended periods of time (in some cases, for as long as several years). One of the categories involves individuals subject to “mandatory detention” pending removal because of their convictions for particular criminal acts committed inside the United States or their affiliation with particular terrorist groups and/or terrorist activity; the second involves asylum seekers seeking entry to the United States, who are subject to “mandatory detention” pending removal if they are determined to lack an entitlement to asylum; and the third involves discretionary detention of certain non-citizens “pending a decision on whether the alien is to be removed from the United States.” In all three cases, the Ninth Circuit had interpreted the immigration statutes, with some help from the constitutional avoidance canon, to require periodic bond hearings (every six months), and to mandate that, at such hearings, the government has the burden of showing, by clear and convincing evidence, that the detainee poses “a flight risk or a danger to the community.” Thus, when the Supreme Court granted certiorari, it looked like this case would be an important case about immigration detention, but one limited to statutory interpretation.

That all changed yesterday, when the Supreme Court issued a supplemental briefing order, which directs the parties and any amici to address whether the Constitution itself, as opposed to proper interpretation of the immigration statutes, requires the result reached by the Court of Appeals. In other words, the Court formally signaled (as the oral argument suggested) some strong discomfort with the Ninth Circuit’s statutory analysis–and, in the process, dramatically raised the stakes of Jennings both within and beyond the field of immigration detention. Among other things, if the Justices tackle the extent to which the Constitution does or does not compel the Ninth Circuit’s bottom line, Jennings now may force the Court to answer:

  1. the constitutional question the Court ducked in Zadvydas v. Davis–whether there are any circumstances in which the government may constitutionally detain non-citizens pending their removal for more than six months without violating due process;
  2. the meaning and continuing vitality of the Cold War-era Mezei decision, which has often (but perhaps incorrectly) been read to have held that non-citizens physically “stopped at the border,” including some of the plaintiffs in Jennings, do not have due process rights;
  3. a constitutional question that the Supreme Court has never confronted concerning whether (and when) the mandatory detention required by the 1996 immigration laws raises procedural and/or substantive due process difficulties;
  4. the question raised, but never definitively resolved, in the Guantánamo cases involving the Uighurs–whether, when the detention of a non-citizen is no longer constitutionally authorized, he has a right to release into the United States even if he was never lawfully present in the United States in the first place;
  5. the standard of review the Constitution requires in cases in which it requires judicial review of ongoing detention (a much-debated question in the post-Boumediene Guantánamo habeas litigation); and
  6. the major constitutional question whether the “entry fiction” applies to those non-citizens who are physically present, but are not lawfully present within the United States.

To be sure, I think many of these constitutional questions have answers (and I joined an amicus brief in Jennings so arguing). And the strength of these constitutional concerns may well help to explain why the Court of Appeals relied on statutory interpretation in its analysis–hardly the first time that constitutional avoidance has pushed courts toward… un-obvious… interpretations of the immigration laws (a result that could very much still be what the Court embraces in Jennings–especially if it is divided or unsure on the constitutional issues). But however one would answer these constitutional questions, the critical point for present purposes is that they’re now properly joined in the Jennings case–and the consequences of the Justices’ answers could resonate far beyond the significant but limited issue of immigration detention. In a Term that had been lacking for high-profile, landmark constitutional cases, Jennings may just have emerged as the clubhouse leader…