Gorsuch, Kavanaugh seem divided on case

WASHINGTON — It appeared during oral arguments Wednesday that President Donald Trump’s two nominees to the Supreme Court might play key roles in deciding the rights of some immigrants to challenge their detention during deportation hearings.

But it wasn’t clear that they would arrive at the same conclusion.

The question was whether federal law requires authorities to detain — without a bond hearing — those legally in the country who have committed certain crimes that make them eligible for deportation. On the other side in the case were immigrants who had been in the U.S. in some cases for years without incident after completing their jail terms. But they were picked up and held in detention without a chance for release while fighting the deportation orders.

Justice Neil Gorsuch, confirmed to the court in 2017, seemed concerned that the law gives federal officials too much power to bring in such people even decades after they had completed sentences for what could be somewhat-minor crimes.

“Is there any limit on the government’s power?” Gorsuch asked Department of Justice lawyer Zachary Tripp.

New Justice Brett Kavanaugh, on the other hand, noted that might be a reason for the court not to impose a time constraint on the government.

“Congress knew it wouldn’t be immediate, and yet Congress did not put in a time limit,” Kavanaugh told Cecillia Wang, a lawyer for the American Civil Liberties Union representing a class of people who had been detained.

“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.”

As is often the case, the justices were debating what lower courts have found to be ambiguous wording in a federal statute. It says the attorney general “shall take into custody any alien” who has committed certain offenses “when the alien is released.”

That “when” is what the case was about.

The U.S. Court of Appeals for the 9th Circuit interpreted “when” to mean right after the completion of someone’s criminal sentence.

Tripp said that Congress knew when writing the statute that federal authorities should not be expected to pick up someone the moment they walk out of custody.