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02/28/2018

Jennings v. Rodriguez Cuts Back on the Constitutional Doubt Canon
Michael Ramsey

Speaking of the constitutional doubt canon (see here from last week) ... Tuesday's opinion from the Supreme Court in Jennings v. Rodriguez took a somewhat narrow view of it.  The lower court had found a statutory right to periodic bail hearings for aliens being detained pending removal; the conclusion was that, absent such a right, the statute authorizing detention would "raise serious constitutional concerns."  Wrong, said Justice Alito, writing for himself, Roberts, Kennedy, Thomas and Gorsuch:

The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Clark v. Martinez, 543 U. S. 371, 385 (2005). In the absence of more than one plausible construction, the canon simply “‘has no application.’” Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001)).

The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III–A and III–B, we hold that, subject only to express exceptions, §§1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III–C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.

The Court sent the case back to the Ninth Circuit to decide whether the statute, lacking the right to bail hearings, is constitutional.  As discussed in the previous post, I'd rather get rid of the canon altogether, but a strict prerequisite of textual ambiguity is a useful step.  The alternative, as shown in the lower court opinion, is courts rewriting statutes to avoid constitutional doubt -- something well outside the judicial function.