Brett Stuff
Judging the Judges
Term Year: 2018


Kirstjen M. Nielsen, Secretary of Homeland Security, et al., Petitioners v. Mony Preap, et al.

Bryan Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al., Petitions v. Bassam Yusuf Khoury et al.

Summary Analysis

DATE: 2019-03-19
DOCKET: 16-1363
NAME: Kirstjen M. Nielsen, Secretary of Homeland Security, et al., Petitioners v. Mony Preap, et al.

   AUTHOR: Alito
   JOINING: Roberts, Thomas, Gorsuch, Kavanaugh
   GOOD: No

OPINION: Concurring
   AUTHOR: Kavanaugh
   JOINING: None
   GOOD: No

OPINION: Concurring
   AUTHOR: Thomas
   JOINING: Gorsuch
   GOOD: No

OPINION: Dissenting
   AUTHOR: Breyer
   JOINING: Ginsburg, Sotomayor, Kagan
   GOOD: Yes

Case Commentary

Upon release from jail, a certain class of Aliens (felons, mostly) are to be arrested and held without bail, while a deportation hearing is held.

{And my analysis already contains slight factual errors, discrepancies, and simplifications, along with the use of different words than those used by The Court. So (as always), if one really cares, they should consult the base documentation.}

To my eye, it's pretty clear the intent it to re-arrest folks as they leave prison (this turns out to be a common enough occurrence) and not give them an opportunity to leave custody by giving them a bond hearing, whereupon they could post bail.

The problem arises when a significant lapse of time goes by between an Alien's release from prison and their subsequent re-arrest... often enough, it's years.

{Further, this automatic arrest with no bond rule does not only apply to convicted felons fresh out of jail. In a small minority of the cases, we are talking about suspected terrorists (who if they are suspected hard enough no one really cares about) and related family members, who (never were in jail; and therefore) in most circumstances (I am willing to believe) are innocent bystanders; and therefore (once again), are most deserving (if anyone is under the logic of this case) of relief.}

The Court has decided the length of time (between release and re-arrest) does not matter. And spends a whole bunch of time deconstructing a single sentence to bolster it's claim.

First, I could care less about the deconstruction of any single sentence. The Supreme Court does this often enough. But whenever they do, I lose that much more respect for The System. And yeah, I must have started with a great deal of respect for The System for any loss of respect to still be possible. Bottom line, if a sentence needs to be deconstructed to determine its meaning, the sentence is crap and should be thrown out.

Second, I believe the length of the lapse is important... or maybe not. More accurately, I believe the intent of the Fed is more important.

Upwards of 500 (so, slightly more than, if my numbers are correct) Alien Inmates are released each month, wherein the Feds are not waiting for them at the gates... often because the Feds have not been properly notified by prison officials or due to personnel shortages, as someone must make the arrest.

Now, the Feds must make the arrest, but they don't always. And by all appearances, in many instances, they are making no attempt to make the arrest.

So, if the Feds are trying to arrest, I would grant that upon arrest a bail hearing is not mandatory. But if the Feds are not actively seeking arrest, then they are not complying with the initial must part and the whole thing falls through.

But even that is not good enough, as we are only talking about a bail hearing and not bail itself. I mean, I just don't see holding a bail hearing as being such a big deal... especially if the one side has a big old Bail Denied stamp waiting in the wings.

And although I like the idea of requiring Continued Federal Intent to Arrest, it would become a major pain for the Feds to have to prove Continuing Intent. After all, where does Investigatory Effort end and an Open Ended Holding File of Non-Action begin?

So, I would simply give the Aliens (all Aliens) their bail hearing... with the understanding that no reason need be given to deny bail for convicted felons (or other members of the class), as it's not a right they have.

In his Opinion, Kavanaugh uses The Supreme Court's Imperial We, which I find a bit pompous and ironic, given that the cases they decided (as in, We decided) did not involve him. Just saying.

The laws at hand (the specific ones hardly matter) prohibit judicial review. Um, I don't think that should be possible. Of course, let me restate here, I do not know if the entire Judiciary System operates at the whim of Congress, which if it does, such denials of jurisdiction are fair game. But if not... well, then Congress has no right to state such a thing.

This Balance of Powers issue has come up a time or two before, so I will have to figure out where The Supreme Court's authority originates.

In the end, I believe The Court is factually correct. But as the burden of a Red Stamp Bail Denied Hearing is not that great, I cannot see not granting one: i.e. give them their blessed Bail Hearing.

The alternative is literally keeping folks in jail for an indeterminate amount of time (let's say 3-18 months on average), at the end of which, a significant portion are simply let go and allowed to stay in the country. So, it would make sense to have a sort of Mini Pre-Trial (call it a Bail Hearing), in which the outcome of the main trial was guessed at and bail granted accordingly.

It would be the better course of action.

And yes, I am advocating Legislating from the Bench. But then, that's pretty much what this entire Judging the Judges series is about.

Judging the Judges

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We have spoken!

As is our will.

So shall it be.

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial