MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 22nd of October, 2018.
Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher.
The Supreme Court is on break for two weeks. So this is our first opportunity to catch up on oral arguments to date: Ten so far this term.
And first up today, a case that boils down to the meaning of a single word: “when.”
REICHARD: Here’s the background. This is a class-action lawsuit of three permanent residents of the United States. Each has similar facts, so I’ll just concentrate on one.
Mony Preap came from Cambodia to live in the United States back in 1981. He became a lawful, permanent resident, and lived without legal incident for 37 years. Then in 2006, he got caught with marijuana and convicted of possession.
He served a short sentence before release. But a few years after that, he got himself into trouble again, this time, with a conviction on a charge of battery. Immigration took him into custody in 2013.
EICHER: Now, had Preap been an American citizen, or he’d not committed the drug offense, he’d have been entitled to what’s called a bond hearing. That is, a chance to convince a judge that he isn’t a flight risk and he’s trustworthy to show up for later hearings. Then he could’ve gone on with his life in the meantime.
But Preap fell into the category of a noncitizen who had committed a crime. So he did not receive a bond hearing.
Preap and the others argue that’s unfair. They complain that the law is being interpreted to keep them in detention unnecessarily.
REICHARD: And that’s where the definition of the word “when” comes in. The noncitizens argue if the government doesn’t detain them immediately after being released from custody, then they should be entitled to a bond hearing. Not months or even years later.
Now Justice Neil Gorsuch is a reliable skeptic of a too-powerful government. He pointedly asked Assistant to the Solicitor General Zachary Tripp about that power.
GORSUCH: Thirty years and the government was aware of him the entire time and chose not to act … . Is there any limit on the government’s power?
TRIPP: So we understand the Subsection 1 to be a continuing obligation that does not lapse…
REICHARD: The Trump administration reads the law the same way the Obama administration did. That is to say, the federal government interprets the law to mean Congress intended to detain all criminal noncitizens without bond. Period.
Court briefs explain why Congress adopted the immigration law in 1996.
Dangerous criminals weren’t showing up for their deportation hearings. Some went on to commit new crimes while out on bond. It takes a lot of tax dollars to do bond hearings on a case-by-case basis.
And later on, the Supreme Court ruled noncitizens aren’t entitled to the same protections that citizens have in criminal matters. The law refers to these noncitizens as aliens, and you’ll hear government lawyer Tripp using the term as well, as he tries to school the justices in the practicalities.
Tripp says sanctuary cities make detaining people quickly nearly impossible. And other delays are simply unavoidable.
TRIPP: In order to arrest an alien under one of these provisions, DHS first needs to know a person is actually an alien and has actually committed one of these crimes. In many cases this is going to take real legwork by DHS officers on the ground. Pulling the records of conviction, looking to see the statute and comparing the elements of the statute to the elements of the generic offense. And I think the court is painfully aware that can be difficult and time consuming.
REICHARD: Justice Stephen Breyer seemed exasperated by the government’s argument.
BREYER: So you think a person 50 years later, who is on his deathbed, after stealing some bus transfers, that this paragraph says that the attorney general shall release him and hold him without bail, even though in this country a triple ax murderer is given bail, a hearing, a hearing?
REICHARD: Triple ax murderer or not, the law in question says immigration has a “reasonable time” in which to bring people into custody after release from state prison.
But we’re still left with what does that mean? What’s reasonable? Lower courts in this case said it’s something like 48 hours.
Chief Justice John Roberts questioned the noncitizens’ lawyer about different meanings in regard to how we talk about time. He’s addressing attorney Cecillia Wang here.
ROBERTS: Now which are you arguing for, reasonable degree of immediacy, which strikes me as a very short time, or a reasonable time? Reasonable time would depend, for example, on the resources that are available to the Department of Homeland Security…. But a reasonable degree of immediacy is something else. That strikes me as a half-hour or something, because, otherwise, it’s not immediate. So which is it, reasonable degree of immediacy or reasonable time?
REICHARD: Wang tried to distinguish between the time and the effort involved. But the justices were casting about for some logical bright line.
Justice Ruth Bader Ginsburg laid out a hypothetical of two people to illustrate a seeming absurdity.
GINSBURG: Let’s take two people, identical crimes. One gets picked up immediately and no bail hearing. The other doesn’t get picked up until two years later. Bail hearing. As far as the alien is concerned these two are identically situated, and yet one gets the benefit of a bail hearing and the other one, no. Why does that make sense?
REICHARD: Wang argued like it or not, that’s what Congress intended. Finite resources must be carefully doled out.
Justice Samuel Alito returned to the chief justice’s quest for clarity of meaning.
ALITO: Does “when” mean “immediately”?
WANG: Yes, Your Honor. So we would ask-
ALITO: Immediately. So as soon as the person walks out of the door of the prison or the jail, if ICE doesn’t take the person into custody at that point, that’s the end of it?
REICHARD: And for you English majors, I throw in this exchange between Justice Gorsuch and lawyer Wang. They were working out verbs and adverbs to figure out what the disputed statute really means.
GORSUCH: Usually, they modify the verb. So let’s start there. So why should we—you’re asking us to take a rather unusual view of grammar. One I think I’d have to delve pretty deep in the footnotes to find.
WANG: It wouldn’t be…
GORSUCH: Why would I do that?
WANG: It wouldn’t be the first time Congress tortured grammar. [laughter]
GORSUCH: I think that my fifth grade grammar teacher would love this discussion. [laughter]
REICHARD: This is a case where the conservative majority is likely to put some limits on the government’s authority to detain people, but not give the noncitizens 100 percent of what they seek. The liberal justices in a dissent just last year said it violates the Constitution to deny bond hearings to noncitizens.
But I don’t think that reading will win here.
My other case today involves an American citizen convicted of the crime of rape.
Herman Gundy received two sentences for raping an 11-year-old girl. After he served out his state sentence in Maryland, then federal officials took custody of him so he could serve out time for a related federal sentence.
He took a bus to a halfway house in New York, then earned release in 2012. But Gundy failed to register as a sex offender as he moved from state to state.
And failing to do that violates a 2006 law known as SORNA—the Sexual Offender Notification and Registration Act. Sex offenders are supposed to keep their whereabouts updated with state officials at all times.
But SORNA wasn’t the law when Gundy was convicted for that child rape. So now he argues that law ought not apply to him.
Justice Ginsburg questioned how making a law like that retroactive can work anyway. She addresses Deputy Solicitor General Jeffrey Wall.
GINSBURG: Mr. Wall, can you tell me how—how this retroactivity works? So let’s take somebody who was convicted of a sex offense 30 years ago. He’s had a clean record ever since. First, tell me how such a person gets notice of the registration requirement?
REICHARD: Well, those aren’t the facts here, Wall countered. And it’s crucial to understand the goals of Congress in passing SORNA.
WALL: To be honest with you, I think it defies both the text of SORNA and reality to think that Congress was agnostic about whether hundreds of thousands of people who have committed very serious sex offenses, as petitioner has, should be required to register… Congress wanted as many of those offenders in the system as the attorney general could get in.
REICHARD: As often happens by the time a case reaches the Supreme Court, this case has ramifications way beyond the unsympathetic character of Herman Gundy. Nothing less than the separation of powers is in play.
The Founders designed the three branches of government to keep power from being too concentrated in one branch. Lawyers for Herman Gundy argue that Congress cannot outsource the decision of whether a law can be applied retroactively. That’s solely a legislative function.
But outsourcing is exactly what’s happened.
Enforcement of SORNA to pre-2006 sex offenders is at the whim of one person: the attorney general of the United States.
One of the friend-of-the-court briefs filed in support of Herman Gundy is from the ACLU. Not surprisingly, liberal-leaning Justice Ginsburg is in agreement with it. But so is more conservative Justice Gorsuch.
And here’s where liberal and conservative thought can merge in some ways. Justice Gorsuch is no fan of expansive government, nor of laws applied retroactively that leave it vague as to who exactly is subject to it.
Listen to this exchange with Sarah Baumgartel, Gundy’s lawyer, along with Justice Ginsburg.
GINSBURG: And the specific statutory provision dealing with pre-enactment offenders says unambiguously that the attorney general decides whether, how, when, and who—even who—so you don’t even know if you’re going to be subject to this law… We say that vague criminal laws must be stricken… What’s vaguer than a blank check to the attorney general of the United States to determine who he’s going to prosecute?
GINSBURG: That’s your argument stated very, very concisely.
REICHARD: Baumgartel, for Gundy, made her final foundational argument: that this can’t be just about what’s practical or feasible.
This is about individual liberty where delegating power can’t be right.
BAUMGARTEL: For that reason, this delegation is unconstitutional. Thank you.
ROBERTS: Thank you counsel. The case is submitted.
REICHARD: This might be another case in which the court carves out criminal laws from other laws for closer scrutiny. With justices like Gorsuch and Ginsburg on opposite ideological sides in seeming agreement in this matter, it’s a good bet the court will restrict SORNA’s retroactivity.
Eighteen states have a functional registry and 26 more states are in the process of it. However the court decides, the effect will be felt nationwide.
And that’s this week’s Legal Docket.