There has been much alarmism from immigrant rights advocates about the Supreme Court’s decision in Jennings v. Rodriguez.  In a very practical way, this alarm is entirely justified. The Court has, for now, eliminated the possibility of bond hearings for immigrants subject to “mandatory detention” while they fight their deportations. Personally, I find that practical reality deeply disturbing. But, for better or worse, the Supreme Court’s primary job is to worry about legal doctrine. And the more I read Justice Alito’s majority opinion, the more I am inclined to think that the decision is quite defensible in terms of its own narrow legal analysis, and that the decision in the long run may not really be about immigration detention (although that is where its impact will be felt most immediately).

In the space here, I will make three brief points about the case:

1. The main focus of the decision is on textualism and statutory interpretation, specifically the limits of the canon of constitutional avoidance.
2. The decision is part of a long series of cases implicitly signaling important limitations on Chevron deference.
3. Looming and momentous questions about constitutional constraints on immigration enforcement have to be resolved directly, rather than through strained interpretation of statutes.

To start off, I should note that Justice Thomas’ opinion would be a tremendous set back for immigrant rights. Joined by Justice Gorsuch, Thomas argued that Congress has severely limited (and may severely limit) the courts’ jurisdiction to even consider the statutory and constitutional issues implicated by detention of immigrants. But the good news for immigrants is that this view earned only two votes. The plurality of conservative justices — Alito, Chief Justice Roberts, and Justice Kennedy — pointedly rejected such severe restrictions on immigrants’ access to the courts (“this expansive interpretation … would lead to staggering results.”).

Statutory Interpretation and Constitutional Avoidance

Ever since Zadvydas v. Davis (2001), the doctrine of constitutional avoidance has been a key tool in judicial efforts to expand immigrant rights. In that case, the Court found a way to avoid indefinite detention of immigrants who had been found deportable by reading a six-month limitation into the statute, so as to avoid directly deciding whether indefinite detention would be constitutional. In Jennings v. Rodriguez, the Ninth Circuit tried to apply this to a different statute calling for the detention of certain immigrants who are still fighting their deportation cases.

In theory, constitutional avoidance is supposed to be a form of judicial restraint, because it allows a court to preserve a statute rather than invalidating it on constitutional grounds. But it has long been subject to criticism, because in practice it often does not seem to restrain courts. In particular, if pushed too far, it tempts courts to reinterpret statutes so severely that it encroaches on the legislature’s authority to write the legislation. The majority in Jennings repeatedly states that constitutional avoidance only allows a court to choose between two plausible interpretations of a statute. Justice Alito wrote: “Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.”

This in no way ends the canon of constitutional avoidance. If there are two plausible readings of the statute, the canon may be invoked. The majority (grudgingly) acknowledges Zadvydas as the apparent outer limit of the canon’s reach, but the central point is that there must be a limit. Moreover, even if the canon of constitutional avoidance does not apply, the Constitution itself still does. If the only plausible reading of the statute is unconstitutional, then the statute is unconstitutional.

In this light, the pivotal issue in the Jennings decision is at the top of page 2 of the slip opinion: “All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention.”

Silence on Chevron (again)

The constitutional avoidance canon’s requirement that there be more than one plausible interpretation of the statute is strikingly similar — maybe identical — to a Chevron Step One analysis. For a court to defer to an agency’s reasonable interpretation of a statute, there must be more than one possible interpretation available. I raise this because the Department of Justice told the Court that its interpretations of the immigration detention statute “warrant full deference under Chevron.”

So, what did the Supreme Court say about Chevron in Jennings v. Rodriguez? Absolutely nothing. The word “Chevron” does not appear in the decision. The word “defer” does not appear. Not in the majority, and not in the dissent either, for what it’s worth.

As I’ve recently written, cases where the the Court ignores or fails to apply Chevron when it seems to be relevant may be thought of as “soft anti-Chevron decisions.” Because of the Court’s silence, it would be ambitious to cite Jennings v. Rodriguez on its own as a limitation on the Chevron doctrine. It is not a loud limitation on Chevron, like King v. Burwell, for example, where the Court announced an apparently new “major questions” limitation on Chevron. But where we can identify a reason for the Court’s silence, and especially if we can find a pattern in a longer series of decisions, we may learn a great deal from these “soft” decisions about the Court’s sense of when judicial deference is and is not appropriate.

There seem to be two explanations for why the Court ignored Chevron in Jennings (and they are not mutually exclusive).

First, this looks like a Step One decision. We know from the discussion of constitutional avoidance that the Court saw only one plausible interpretation of the statute, and thus there would be no need to defer to an agency interpretation. It would have been helpful if the Court had said this, but perhaps since the government won anyway there seemed to be no need. And yet, when the Second Circuit considered the same immigration detention issue that Jennings v Rodriguez raised, it invoked and rigorously applied Chevron deference. As others have observed before, the more judges feel confident in their own abilities to find clear meaning in statutes, the less relevant Chevron will become. (And so, too, the canon of constitutional avoidance.)

Second, Jennings fits a pattern in the way the Court has used (and not used) Chevron in immigration cases. As I document in a forthcoming article, the Supreme Court has fairly consistently applied Chevron deference in cases concerning applications for immigration benefits — Scialabba v. Cuellar de Osario (2014) being a good example. But it has generally avoided deferring to the executive branch in cases involving grounds of deportation or detention. The normative explanation for this, I argue, is that deferring to the executive branch is uniquely inappropriate when physical liberty is at stake. Detention and deportation involve severe government intrusions on physical liberty. In such cases, fully independent judicial review is especially important, and deferring to the executive branch would be especially problematic in terms of separation of powers.

The Looming Constitutional Question

The Court remanded the case to the Ninth Circuit to consider whether the no-bond immigration detention statute is constitutional. This is really the big question for immigration law; constitutional avoidance was just an indirect way of getting at it. It was also fully briefed at the Supreme Court, and yet the Court still punted on it. The Court seems to be having real difficulty with this question. After all, this case was meant to be decided last term, but it was re-calendared when the short-handed court failed to reach a resolution. In some ways, the Court has still failed to resolve the matter.

It is entirely possible that this case, or at least the central constitutional question, will return to the Supreme Court. If that happens, then a potential Jennings v. Rodriguez II (or its doctrinal equivalent) will be the real showdown about immigrant rights. Jennings v. Rodriguez I — the one that was decided in February 2018 — may in the long run be important for what it says about canons of statutory interpretation, but may have less long term impact on immigration law.

What is clear, however, is that courts will need to confront constitutional questions more directly, because it will be harder for them to just re-interpret statutes so as to avoid them. It seems reasonable to acknowledge that the six-month rule in Zadvydas pushed the boundaries of what one can fairly read into a statute. But the real importance of that case is its recognition that immigrants have a liberty interest in not being detained, and that the government’s power to regulate immigration has “important constitutional limitations.” This was a breakthrough for immigrant rights, but the Court’s tendency to proceed incrementally probably explains its inclination to fall back on statutory interpretation rather than strike down the statute.

While Jennings leaves the big constitutional question looming, it will now require a bit more courage from judges. They will have to say whether key immigration detention provisions enacted by Congress are constitutional, yes or no.  There literally is no longer an avoidance option.