Supreme Court Update: Jennings v. Rodriguez (15-1204), Patchak v. Zinke (16-498), Class v. United States (16-424)

March 12, 2018 Supreme Court Update

Greetings, Court Fans!

We're back with Part II of our February-sitting catch-up, with summaries of Jennings v. Rodriguez, Patchak v. Zinke, and Class v. United States. Without further ado…

The high-profile immigration detention case Jennings v. Rodriguez (No. 15-1204) was originally argued in November 2016, when the Court had only eight members. Presumably to avoid a 4-4 split on a significant issue—whether detained immigrants have a right to a bond hearing while they are awaiting removal—the Court set the case for reargument. It was argued before a full bench in November, but then, a few weeks after argument, Justice Kagan recused herself after learning (rather late in the game) that she had authorized the filing of a pleading at an earlier phase of the case, while serving as Solicitor General. Back down to eight Justices, the Court was able to avoid deadlock (a missing "liberal" is less consequential than a missing "conservative" in most cases), but it is possible that Kagan's absence contributed to the relative modesty of the Court's decision: By a (more or less) 5-3 vote, the Court held that detained immigrants have no statutory right to periodic bond hearings, but did not decide whether the constitution may provide that right. The decision therefore preserves, for now, the Government's broad statutory authority to detain certain categories of immigrants indefinitely, but tees up a fight over the bigger question whether these very statutes violate the Due Process Clause.

The statutes at issue were 8 U.S.C. §§ 1225, 1226, which give the Government authority to detain most immigrants who enter the United States without being lawfully admitted. Broadly speaking, those statutes deem such immigrants to be "applicants for admission" and provide that they "shall be detained for a [removal] proceeding." Even if already in the United States, they may be "arrested and detained pending a decision on whether [they are] to be removed." With some exceptions, the statutes permit the Attorney General to release these detainees on bond, but do not expressly require bond proceedings. The petitioner, Alejandro Rodriguez, was detained under § 1226 in April 2004 and remained in custody while removal proceedings against him were on appeal. In May 2007, he filed a habeas petition in federal court contending that he and a class of similarly situated immigrants were entitled to bond hearings under §§ 1226 and 1225. The Ninth Circuit permitted class certification and upheld an injunction placing limits on detention. Invoking the "canon of constitutional avoidance," the court determined that its interpretation of the statutes should avoid the "serious constitutional concerns" raised by the Government's reading of the statutes. It therefore read the statutes to provide for detention beyond six months only if the Government provides individualized bond hearings and proves that detention is necessary to prevent flight or protect the community.

The Supreme Court reversed in a 5-3 decision. Joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch, Justice Alito concluded that the Ninth Circuit improperly relied on the canon of constitutional avoidance. The canon "comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction." The majority emphasized that the statutes simply say nothing about mandatory bond hearings or limitations on the length of detention, except that detention must end once removal proceedings conclude. The avoidance canon could not be used to completely rewrite the statute to require periodic bond hearings. Although the Court had previously, in Zadvydas v. Davis (2001), invoked the avoidance canon to read a six-month limitation on detention into a different section of the INA, 8 U.S.C. § 1231(a)(6), that case was different because § 1231(a)(6) permitted the Attorney General to extend the detention of those already ordered removed beyond the otherwise applicable 90-day limit. The Court in Zadvydas held that any grace period beyond 90 days must be "reasonably necessary to secure removal" and set a "presumptive" limit of six months. Here, by contrast, there was no existing statutory limitation to detention under §§ 1226 and 1225, so reading a bond requirement into those statutes would not be interpreting the statute using the constitutional-avoidance canon, but simply rewriting it, which courts cannot do.

Justice Alito's opinion was joined in full by the Chief and Kennedy. Justice Thomas and Gorsuch joined the majority opinion's analysis of the merits, but they did not join Part II of the opinion, which addressed whether the Court had jurisdiction to entertain Rodriguez's claims in the first place. Writing separately for the pair of them, Thomas argued that Congress has prohibited courts from reviewing aliens' claims relating to removal, except in a petition for review from a final removal order. Inasmuch as Rodriguez had brought his claims affirmatively through a class action, Thomas concluded that the Court lacked authority to consider the claims. Nevertheless, because a majority of the Court believed it had jurisdiction, he and Gorsuch joined its opinion resolving the merits.

Left unresolved is the lingering question whether §§ 1226 and 1225 (which, as construed by the majority, permit indefinite detention of immigrants awaiting removal determinations) violate the Constitution. Because the Ninth Circuit resolved the case by using the constitutional-avoidance canon to read bond requirements into the statutes, that issue wasn't squarely before the Court. But it surely will be soon, as the case was remanded for consideration of that question by the Court of Appeals in the first instance (along with several other procedural questions).

The dissenting Justices had plenty to say on the constitutional question, however. Joined by Justices Ginsburg and Sotomayor, Justice Breyer penned a lengthy dissent, which he read from the bench, directly arguing that the majority's interpretation "would likely render the statute unconstitutional." In contrast to the majority's singular focus on the statutory language, Breyer invoked nothing less than the Declaration of Independence—"all men and women" have the right to liberty—and framed the case as turning on the application of fundamental and age-old due-process principles to the interpretation of these provisions of the INA. Breyer criticized the Government's position that detained immigrants seeking admission enjoy no constitutional protections, despite being held in U.S. territory. And he outlined the long history and importance of the right to bail hearings, even in civil contexts. Given their views on the constitutionality of indefinite detention in this context, the dissenters found ample reason to read a bail hearing requirement into the statutes: serious doubt about the constitutionality of a contrary interpretation and the ambiguity of the words "detain" and "custody," among other reasons. Though the Ninth Circuit can no longer rely on the avoidance canon, Breyer's dissent has given them plenty of fodder for finding §§ 1226 and 1225 unconstitutional. Of course, that question will ultimately be one for the Supreme Court to decide (though perhaps in a different challenge that would permit a full roster of justices to consider it).

In Jennings, the majority was concerned about the line between interpreting legislation and "legislating from the bench." Our next case took on the inverse problem: When does Congress cross the line between passing legislation addressing federal court jurisdiction (permissible) and "adjudicating from the Capitol"? Two terms ago, the Court unanimously agreed that Congress could not enact a law directing that, in the hypothetical pending case of Smith v. Jones, "Smith wins." But could Congress enact a law directing that there "shall not be filed or maintained in a federal court" any suits about the issue Smith and Jones were litigating and that any such suits "shall be promptly dismissed"? In Patchak v. Zinke (No. 16-498), six members of the Court said that's okay (with a difference of opinion as to why) over a puzzled dissent that thought this question had already been answered.

First, the background: In 1999, the Secretary of the Interior ("the Secretary") formally recognized the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians ("the Match-E-Be-Nash-She-Wish Band") (just kidding: "the Band"). At the Band's request, the Secretary invoked the Indian Reorganization Act to take into trust a 147-acre parcel of land known as the Bradley Property, which the Band then used to build a casino. A nearby landowner, David Patchak, sued the Secretary under the Administrative Procedure Act, alleging that the Indian Reorganization Act could not be used to take land into trust for the Band. The Secretary argued Patchak's suit was barred by sovereign immunity and that he lacked prudential standing. The district court agreed, dismissing his suit, but the D.C. Circuit reversed. The Supreme Court then granted certiorari and affirmed, finding that the APA's waiver of sovereign immunity applied and that Patchak had prudential standing. It concluded with the statement that "Patchak's suit may proceed."

It did not proceed for long. While the case was back in the district court on remand, Congress enacted the Gun Lake Act, 128 Stat. 1913. Section 2(a) of the Act "reaffirmed" that the Bradley Property is trust land and "ratified and confirmed" the Secretary's actions taking it into trust. Section 2(b) provided:

Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act), relating to the [Bradley Property] shall not be filed or maintained in a Federal court and shall be promptly dismissed.

Based on this newly enacted statute, the district court dismissed for lack of jurisdiction. This time, the D.C. Circuit affirmed, and the Supreme Court again granted certiorari. But (and this makes much of what follows somewhat academic) Patchak did not challenge Section 2(a) of the Act, which "ratified and confirmed" the propriety of the Secretary's actions. Thus, the sole question facing the Court was the validity of Section 2(b). Specifically, did Congress have the authority to enact a statute that expressly mandated the dismissal of a pending federal lawsuit, or did it amount to an unconstitutional exercise of the judicial power?

A majority of six affirmed the validity of Section 2(b) but under two different rationales, with neither garnering a majority. Justice Thomas, joined by Justices Breyer, Alito, and Kagan, upheld Section 2(b) under the Court's long-standing "jurisdiction-stripping" precedent. He began with a discussion of the Constitution's separation of powers, which creates three separate branches of government and entrusts to each a different type of power. Among other things, this separation of powers prevents Congress from exercising judicial power, which is left to the judicial branch. Thus, as in the hypothetical discussed by the Court two years ago in Bank Markazi v. Peterson (2016), Congress impermissibly invades the judicial power when it enacts a law saying that "in Smith v. Jones, Smith wins." But on the other hand, Congress's legislative power includes the power to make laws that apply retroactively to pending lawsuits, even when the new law effectively determines the outcome of the suit. The established dividing line between these two is that Congress violates Article III's separation of powers when it "compels findings or results under old law" but not when it "changes the law." And in Justice Thomas's view, all Congress did with Section 2(b) was change the law of federal jurisdiction, effectively amending the general federal-question statute to say "except nobody can sue about the Bradley Property." Jurisdiction-stripping statutes, even those that apply retroactively to pending cases, have consistently been upheld in the past, and the Thomas plurality saw no reason to make an exception here.

Justice Ginsburg, joined by Justice Sotomayor, also voted to uphold Section 2(b). In her view, however, Section 2(b) should not be read as amending the federal-jurisdiction statutes but as amending the APA's waiver of sovereign immunity. Previous decisions have recognized that the United States' consent to suit may be withdrawn at any time, even after litigation has commenced. And that is just what Congress did here: Section 2(b)'s final phrase, directing that suits over the Bradley Property "shall be promptly dismissed" somewhat mirrored the APA's waiver of sovereign immunity providing that suits against the United States under the APA "shall not be dismissed" (emphasis added). Read in this way, Congress simply un-waived immunity, necessitating dismissal, and that also would not violate the separation of powers.

Chief Justice Roberts dissented, joined by Justices Kennedy and Gorsuch. Returning to Bank Markazi's by-now worn-out maxim about Smith and Jones, the dissenters viewed this case as exactly what that rule prohibits. After all, the plain intent of this statute was to ensure that "Smith" (here, the Secretary, and ultimately the Band) wins by directing the result of that case: a dismissal. And while the two plurality opinions viewed this as generally applicable legislation, it's a bit hard to take that seriously: No other suits were filed about the Bradley Property, and because the APA's statute of limitations had by now expired, none ever would be. So why isn't this just the thing the Court said Congress couldn't do two terms ago?

The Chief then turned to the plurality and supporting opinions, in the process making clear why neither commanded a majority. True, as to Justice Thomas's opinion, the Court has generally upheld jurisdiction-stripping statutes, but it has never done so when the courts are stripped of jurisdiction over literally one suit. If Congress can't direct the result of Patchak's suit by passing a law saying "Patchak loses," why should it be able to do the same through the ruse of a law saying "the federal courts must dismiss his suit for lack of jurisdiction"? Moreover, Section 2(b) doesn't contain the word "jurisdiction" at all, so it's a strained reading to treat it as depriving the courts of jurisdiction, particularly in light of recent decisions that counsel against reading statutes as jurisdictional unless there can be no doubt. The same was true for Justice Ginsburg's opinion: Section 2(b) says nothing about immunity, the possible reference to the APA's immunity-waiver provision is not that clear, and generally courts require an explicit un­-waiver of immunity (just as they require an explicit waiver of it in the first place). Thus the dissenters rejected the two plurality approaches based primarily on statutory interpretation of the Gun Lake Act.

Ultimately, despite the disagreements, it's hard not to think that Patchak is more about future consequences and less about the result. After all, Patchak wasn't challenging Section 2(a), which everyone seemed to agree was a valid exercise of legislative power. So whether or not Section 2(b) was upheld, Patchak's suit was effectively doomed to eventual failure. Indeed, Justice Breyer made precisely this point in a separate concurrence: If Congress can validly ratify the Secretary's actions, meaning that Patchak will ultimately lose, why can't it also save everyone a bit of time by just directing that his suit be dismissed now? But where this jurisdiction-stripping-over-a-single-case precedent could lead left everyone (or at least five Justices) a bit on edge, which accounts for Justices Ginsburg and Sotomayor concurring in the judgment only on a separate rationale. But until Congress does something like this again, in a case where the jurisdiction-stripping actually matters, the main result of Patchak is that federal jurisdiction nerds have a fun new case to talk about.

Finally (for today), the Court in Class v. United States (No. 16-424) held that a criminal defendant's guilty plea does not, by default, bar an appeal challenging the constitutionality of the statute of conviction.

Rodney Class pleaded guilty to possessing a firearm on U.S. Capitol grounds, in violation of 40 U.S.C. § 5104(e). In standard form, Class's plea agreement enumerated several categories of rights that he expressly agreed to waive, while enumerating several categories that were not waived on direct appeal. The agreement was silent, however, on whether Class retained the right to appeal his conviction by challenging the constitutionality of the statute he pled guilty to violating. After he was sentenced to 24 days' imprisonment, Class proceeded to do that, challenging the anti-possession statute under the Second Amendment and the Due Process Clause. However, the D.C. Circuit held that Class had waived his constitutional claims through his guilty plea and that the appeal was therefore barred.

The Supreme Court reversed, 6-3. Writing for a majority including the Chief and Justice Gorsuch, Justice Breyer invoked what he characterized as an essentially unbroken line of precedent (the "Menna-Blackledge" line) holding that a defendant does not, by pleading guilty, waive his right to raise constitutional challenges to "the very power of the State" to prosecute him. While Justice Breyer noted that the Menna-Blackledge doctrine has been narrowed by subsequent decisions, he contrasted Class's constitutional challenge from other instances where a plea agreement was found to bar a later appeal, offering a number categorical distinctions. First, the Court noted that while a guilty plea waives certain rights such as the right to a jury trial and to confront one's accusers, it does not relinquish rights that "exist beyond the confines of the trial." Second, a guilty plea can bar a defendant from appealing the constitutionality of government conduct before the plea is entered, including the constitutionality of selecting the indicting grand jury. Finally, a guilty plea waives rights that would contradict any admission made in the guilty plea, such as where a defendant seeks to later deny that he engaged in the underlying conduct that he earlier admitted. Because Class's constitutional challenge implicated none of these scenarios, his appeal was not precluded.

Justice Alito dissented, joined by Kennedy and Thomas. Pointing out that roughly 95% of felony cases in state and federal courts are resolved by guilty pleas, Justice Alito lamented that the "muddle" of rules and exceptions laid out in the majority opinion would provide no clarity as to which claims these defendants can raise on appeal after entering an unconditional guilty plea, and which are waived. In Alito's view, whether a claim is waived on appeal depends only whether the waiver is permissible under the Constitution and other governing law, and whether it is knowing and voluntary. The Constitution does not prohibit appeal waivers of this sort and Justice Alito read Rule 11 of the Federal Rules of Criminal Procedure to provide that an unconditional guilty plea waives all nonjurisdictional claims, with the possible exception of the Mena-Blackledge doctrine, an exception that he would either do away with or limit to the specific facts of those cases. Class's plea agreement, therefore, was not precluded by either the Constitution or other law, and whether it was knowing and voluntary was not properly before the Court. Accordingly, Justice Alito would have affirmed.

Though the dissenters warned that the majority's approach would "bedevil the lower courts," it seems more likely that it will simply lead prosecutors to be more careful about including express waivers in their standard agreements. Whether an express appeal waiver would survive a constitutional challenge (they have generally been upheld in the lower courts) is a question left for another cert. petition.

This completes catch-up Part II. Stay tuned for our final installment…