SCOTUS immigrant detention rule sets Trump up for more court wins

SCOTUS immigrant detention rule sets Trump up for more court wins
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This week the U.S. Supreme Court decided Jennings v. Rodriguez, a class-action case on behalf of immigrants being held indefinitely as they await the outcome of their deportation hearings. By a vote of 5-3 (with Justice Elena Kagan abstaining due to work she did as President Obama’s solicitor general),the court reversed the ninth circuit’s decision that immigrants (both legal and illegal) held pending a deportation hearing must receive a new bond hearing every six months.

Lawyers for Rodriguez (the lead plaintiff-immigrant) were successful in getting the so-called “nutty ninth” circuit court of appeals to require a new bond hearing every six months, despite the fact that there was no such requirement in the immigration statute.

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And that’s the key takeaway from the Jennings case.  There are five U.S. Supreme Court Justices who are committed to applying immigration statutes as they are written.

That may sound simple, but if that judicial principle holds, namely, that the executive branch can implement immigration laws just as they are written, then the Trump White House is going to be in for a run of wins when it comes to immigration cases that open-borders advocates have brought forward.

Don’t be put off by the U.S. Supreme Court declining to hear the DACA (Deferred Action for Childhood Arrivals) case from out of the same ninth circuit this week. The Trump administration actually asked the Supreme Court to take the case before it was argued to the ninth circuit in a rarely used process called “certiorari before judgment.”  Certiorari before judgment is typically used in national emergency cases like the government take-over of steel mills during the Korean War.  So it was no surprise that the Supreme Court is waiting until the case works its way up through the appellate court, which it should be noted, the Supreme Court told to do “expeditiously.”

The Jennings result also bodes well for the White House when the travel ban cases start to be decided by the U.S. Supreme Court. The governing statute under which President TrumpDonald John TrumpTrump: Dems playing destructive 'con game' with Kavanaugh Several Yale Law classmates who backed Kavanaugh call for misconduct investigation Freedom Caucus calls on Rosenstein to testify or resign MORE imposed his travel bans on its face gives the president the power to do just what President Trump’s various executive orders have attempted to do.

The rationale in Jennings applied to the travel ban cases would lead to complete victories for the Trump administration in that area.

Of course, the problem for those who support President Trump’s approach to immigration is that the clock is ticking. We are just past 25 percent of the way through President Trump’s term.  If we take his presidency one term at a time and ignore assumptions about 2020 election outcomes, then the travel ban cases will likely be resolved in 2018, but not the DACA cases (at least not by the Supreme Court).

That means that while rulings upholding the Trump administration are likely going to come from the U.S. Supreme Court on all of the currently-hot immigration cases, they will not come quickly.

Finally, as the U.S. Supreme Court begins to make final rulings on these matters — like they did recently in the Jennings case — it will provide direction to the lower courts that will move those lower courts closer and closer to the position of the Trump administration.

Despite all of the public hue and cry about how “tough” the Trump administration’s immigration positions supposedly are – the Trump administration is the party in all of these cases that is most consistently reliant on the text of the immigration statutes.  With the U.S. Supreme Court signaling in Jennings that it too will be relying on the text of the statutes – without reading new requirements into the text as the ninth circuit did in Jennings – it is the White House that appears most likely to come out on top of all of the pending immigration cases.

But of course, time will tell.

Ken Cuccinelli is the former attorney general of Virginia and president of the Senate Conservatives Fund.