tv Key Capitol Hill Hearings CSPAN December 8, 2016 9:00am-10:31am EST
it's been around a long tomb. you think about our history as a nation. congress could have mustered up, you know, the two thirds to pass it at any time, at any point and especially after the civil war, if the electoral college and that system of selecting a president was deemed to be somehow biassed. you know, certainly after the civil war, this is something that should have been looked upon. and yet i think we only really talk about it when we run into a situation like we do in 2016 with our children electio-- chu
election. thank you very much. >> i had a few comments. >> sure, by all means. >> particularly how do we explain our system to young people. i represented a great majority of university of vermont campus for the better part of ten years and registering voters was difficult. when i would really tease out why that was often case it was this feeling that my vote doesn't matter or we've run into students that live in pennsylvania or new hampshire and they should, in has somewhat perverse way, no, no, no, i'm from pennsylvania, i must vote there. and we would say absolutely. you need to vote there. just an oddity of our system. i think also others have asked, what would a campaign, a national popular vote campaign look like. and we are so fixed on winning
state x and y and that red and blue map. but if you're talking about getting the most votes in the country, it's no longer of particular interest to win a state. it's of intense interest to run up margins in the states where you're going to win and minimize losses in the states where you cannot prevail. so in new england, we all watched new hampshire in 2012, they spent $35 million campaigning in new hampshire. they didn't spend a nickel in vermont, maine, massachusetts or connecticut or rhode island. that would change. there would presumably be a spreading out of the resources throughout new england. and in a state like vermont we delivered routinely the first or second highest percentage of any state for president obama in his election and in his reelection. you could not go to democratic headquarters. 08 miles from my house across
the connecticut rir they were begging people to take it. i just deliberately shut out 30 to 35 states are. the white house and the campaign admitted that they had been polling for two years in 18 states. so in that era 32 states were not of interest to their opinions. this is how shut out we have r. under a popular vote it becomes about margins everywhere and you would try to minimize places where you've been losing. under winner take it, at doesn't matter if you lose the state by 2% or 20%. under the popular vote it's about margins everywhere and the democrats are going to say to us in vermont get me an extra 5,000 votes because i want to offset the drumming i'm taking in alabama. if people are worried about
recounts, you ought to be worried about them today. they're a much bigger problem today. we've had five litigated counts and therefore called into questions results of our elections. in those five cases we had no question who had the most votes in the country. and after all, if there's ten of us in this room and we vote on something, we're far more likely to tie than if there are 1,000 of us in this room. when you expand the franchise so that you treat every vote ek wall out of 130-odd million votes, the chances of a very close election go down. right now we're carving the country up into 51 little pools. and as we saw in 2000, there was a big question of who prevailed in 2000. there was zero question in that election who had the most votes in the country. as we lump the country into one
pool of voters, the chance of recount is diminished. should we need a recount in that case, congress does have a authority to create uniform rules. states do have rules around recounts. but it's a bigger likelihood of having problems today. in fact we've seen problems with recounts. the time line is very condensed. and it is a bigger irritant under the winner take all system than it would be under national popular vote. finally, folks have mentioned potentially instability. instability if you go to compact route where states are changing their state laws. to some that's a great advantage if there is an unanticipated outcome not of the election itself but of the process, well, of course, it's easier than had we amended the constitution to undo an amendment, much easier to change the state law back. but i will say that the idea that legislators who have made this change, who are, after all,
creating a system that far too many americans think already is the case, would have a hard time looking at constituents saying, we've really got to back away from a one person, one vote system where the candidate with the most votes wins the election and go back to the old winner take all situation that's part of the constitution. the political reality creates great instability through state action. but to some segment of particularly my conservative colleagues in the states, they very much favor keeping this power within the states and they like that it's a benefit that maybe people could decide to change their minds back out of a popular vote. >> mr. neal, did you feel a tendency to say something about this point? >> i would like to add a couple of small comments. first historically, if we look at the three-fifths rule, if you
look back and drill doing into the constitutional convention, that was initially established as part of the formula for representation in the house of representatives and for direct taxation. and it is arguable that along with the great compromise, the connecticut compromise which set up the bifurcation between the senate and the house of represe representatives, if south might not have gone along. they might have withdrawn from the convention. so if the electoral college was tainted by its association with this initial three-fifths compromise it was more by extension. as one of the other panelists pointed out accurately, late in the convention the electoral college was the best they could get and it was something everyone could agree on. secondly with another historical reference with respect to represent jackson lee, the hayes ten den event was one of the great tragedies in american
history. if you look at the progress of participation and self governance by african-americans in the south after the civil war, there certainly seem to have been reached a mo das avendy, the ex-con fed rates didn't like it but they worked with the office holders. and the hayes tillden compromise withdrew federal troops who has enforced the rights. and it gave a blank check to jim crow for another 70 or 80 years. i think your point is well taken, madam. with respect to the mpv, i thought one of the more interesting points that was made here today was the possibility that the national popular vote initiative could be a halfway house, which might ultimately led to direct popular election through constitutional amendment, which the panelists suggest was probably the
ultimately the best goal. another interesting point is i watched over the years with respect to proposed amendments that deal with the electoral college. there has been an increasing interest among members -- there was an increasing interest. mr. green was always very active in this, that would enhance the authority of the united states government through its authority other the times, places and manner of holding elections. and some of the other panelists mentioned this here today as well. it is something that the states might complain about, but on the other hand, if it were to -- if there were to be a federal, greater federal role in the way our elections are administered, conducted and perhaps financed, the states might not be arguably might not be so unhappy with
that. and finally, the -- and that might also -- you would really need i think -- this was pointed out by the only panelists. if you're going to have a national recount, you're going to have to have some manner of doing it on a uniform basis across the country, because there are 50 different statutes on the books in the states right now and it's very difficult to do that. and finally with respect to constitutional amendment for direct popular election, constitutional amendments as we said earlier are difficult to get through. my experience from studying the amendment process is that either amendments either are the result of a long building up of public support until it becomes obvious that there are national juror the majorities are in favor of it or it's a cattizing event such as with respect to the 25th amendment, the assassination of president kennedy.
both of these factors are helpful. and the third factor is the attention and support of members of congress and the leadership in congress. now, for many years i used to say that if we ever had a so-called misfire that there would probably be action in congress to push for a constitutional amendment. well we had one in 2000. congress did respond. it was through the help america vote act which i don't think i heard mentioned here today. and that was useful legislation to provide improved and enhanced federal standards and grants some aid to the states to improve their election proced e procedures and their hardware. there has been work on this in congress and it's a possibility -- i can't speculate -- that this cattizing event here that we've seen may lead to further developments. so i just wanted to make a
comment. >> mr. scott? >> thank you. on this recount, one of the things about a state recount, if you are a recount you would assume that both sides are going wob well represented. if you have a national recount in both states you may not in fact have both sides well represented and you might have different election laws, same day registration. if you're running up the vote, the election laws can be extremely helpful. one of the things you've suggested is there have to be national standards which would eliminate the voter suppression laws which some states enact. but i would hope that we would get that straight before we'd go to a popular vote so you wouldn't have some states doing their own recounts, changing their election laws to allow same day registration and everything else, no counting, no certifying results that are absurd on their face. and then we're facing with having to accept that or -- i
don't know if you would do. but if we had the federal re mechanism in place first, you would have something that would make sense. a couple of other things, we haven't heard -- i haven't heard any comment about whether or not running up the score in one state would produce a better president than in the close states trying to get from 49 to 51. which would produce the better candidate, particularly if it's a swing state where you have to get to -- you have to cover half of the country. you got to get to 270. you could get a popular vote running up the score in a region and holding your own in the rest, which is actually better. and finally, one of the things that could be helpful in this is if you had a runoff.
if you have a bunch of candidates getting 25%, 35%, whether or not you would have a runoff and would the cutoff be 50% or something lower. any comments? >> on those three questions, first, you're absolutely right, representative, that we're going to need national standards, not just for the recount but for the count and in effect for voting because in an electoral college world, the states don't have a particular incentive to make it easy to vote. you get the same number of electoral votes in 1910, whether you let women vote or not, whereas in the direct election you double your clout if you let women vote. so in a direct election world it is true and it's a concern and i've tried to address it as i thought through the ideas that became the national popular vote. you're going to need national
oversight because california might say hey, let's let 17-year-olds vote. and texas says, hey, let's let 16-year-olds vote. and arkansas says hey, let's let dog votes. you're going to need -- and this is a good thing, not a bad thing -- to have a national law that you all would draft implementing a national right to vote. the founders didn't have that phrase right to vote in the constitution. you now have it five times. and the deal gal tearian idea that all votes are counted ekly and no voter is more valuable than any other voter whether they're in a swing state or a not swing state or urban or exurban or rule, that will not be vindicated if you count those equally with those who have different rules and who can vote or can't vote. you're going to need that up front whether it's required or not by the interstate compact clause, it's what will make the system actually work.
and it's to be admired. and other countries do it. as to whether it's better to have candidates who try to rack up votes in their bases or just appeal to swing areas, that's basically the same issue, frank frankly, that exists in states. we could just count -- we could say swing counties rather than swing states. do you try to, in california, rack up the vote, you know, in urban areas or do you try to instead have a different kind of appeal where you might not rack up as many votes there but you will lose fewer votes and anti-urban areas. so we -- and my claim is that we have many states that have quite diverse and they're big and they look like america whether we call them ohio or pennsylvania or california or texas. and our governors are just fine
with one person, one vote, uniform standards. but the system will change if we move to that. and we can't fully predict all of the changes. but what we can say is we can look at governors -- i don't think they're a bad model. we can look at the rest of the world. no one else has the electoral college. no state or no international counter part and that system seems to work pretty well for those places. >> chairman? >> yes. >> i just want to put something in the record. you've been indulgent with your time and get a quick yes or no. mr. chairman i said at the beginning i think this has been a rewarding and instructive, constructive and particularly intellectually grounded in the constitution and otherwise hearing. and i believe it is important, now that we're on, i think, fifth popular vote, if i have
the count right, popular vote conflict between electoral college that we have official important and ongoing hearings on the question of presidential elections, which include the electoral college in the house and the senate. can i get a quick yes or no from each? mr. lamar? >> amen >> need to be verbal but i think down to the end. each -- >> congressional research service will support congress whatever decision you make. >> i know you will. i forgot your limitations but thank you for that. and i have a letter asking for those hearings. thank you. >> you want to put it in the record? >> yes, sir, i would like to do so. ask unanimous consent. yield back. thank you, gentlemen. >> yes. there's some other comment that we want to hear from before we close down? >> mr. chairman? >> okay. >> i would like to make a brief comment about the interstate
compact and the notion of a weigh station. there are two different ways to think about a weigh station, one you get it, see how it works and move to an amendment. i look at it as a way of mobilizing political support for changing the system. and that if you got very close, then that could be channelled for amendment. >> okay. yes, sir. >> mr. chairman, and with regard to representative scott's comment, i understood he made a comment to the effect of do we end up with a better candidate at the end. well, you look at this particular election cycle starting with 17 republican candidates and i think we had 4 democratic candidates and it's really through that primary process that a party chooses a candidate, of course, it's a party based process. and so the one thing i would voice is i'm a -- i consider myself a federalist and a
constitutionalist and i would be concerned that right now we have a u.s. justice department that can at times be very y overreaching when it comes to stamping down the states and not necessarily treating us as sovereigns when it comes to our election laws and how we have our elections. and goodness, if state of arizona has a policy that disenfranchises individuals or groups based upon any criteria, you know, it's going to make headline news and we're going to be -- you know, we're not going to be able to move guaforward w that. we're going to be dealt with accordingly. the last thing i would want to see is that the federal government take away more of our sovereignty at the state level to run our business when it comes to elections. that we don't need to be
micromanaged. and if there are grievances from individuals or groups because they feel we're being unfair, then those need to be brought out in the light of day. and if we are making polimistak whether accidentally or or purpose, we need to correct those mistakes. thank you very much. >> mr. pearson, did you want to close this down? >> well i would be honored to, sir. >> all right. >> one final comment in regard to representative scott's deep concern about the differentiation between state laws, particularly under a national popular vote. this is the system today. and we live with those results today. and i would argue they have a very deep impact today, in fact outside influence today than they would under national popular vote. surely we would agree florida's use of the chad ballot in 2000 had enormous implications that the rest of the country had to live with. same day vote in ohio or lack thereof as a major influence in
our elections. voter id laws in wisconsin is going to ripple through the future of our country. when we routinely have a system that comes down to five to 12 battle ground states and we live under the variation of those states' laws, we're going to already see an outside influence over the variation of state law. when you lump everybody together, i would argue that it minimizes the impact of that variation. >> mr. scott? >> we've had comments that the electoral college doesn't exist anywhere else. actually it exists in the city of richmond, virginia where your elected mayor by carrying five of nine wards. >> on that note, i want to thank the panelists for an excellent discussion. there were seven of you initially, but this has worked
now the supreme court oral argument in jennings very rodriguez. it's a case about alejandro jennings, held for three years on deportation orders without a hearing. the court will decide if the government can detain immigrants without a bond hearing during deportation proceedings. >> your argument this morning in jennings versus rodriguez. >> mr. chief justice and may it
please the court. at the i'm time addressed the real concerns about ra sid vichl and flight risks for removal proceedings for certain categ y categories of criminal aliens. the ninth circuit undid that invoking constitutional avoidance by requiring to government to release the aliens unless the government can prove every six months that detention remains necessary. the decision is a serious misuse. with respect to arriving aliens, there's no constitutional problem to avoid. the ninth circuit recognized the statute is constitutional in the vast majority of applications and any concerns about outlier cases involving lawful permanent residence can be addressed. with respect to criminal aliens, the text of the statute forecloses the ninth circuit's approach and in any event the statute is constitutional as
written under this court's decision. the ninth circuit rigid one size fits all rule is a regime that's at odds with the text that congress enacted. it undermines dhs's enforcement. >> what about 1225 a, that is aliens don't fit in either of the categories you discuss, they are not entrants and not people who have committed qualifying criminal offenses. so they are the 1225 a people. >> for those individuals, they've had bond hearings or they have often hads bond hearings. and so we're talking about individuals who either had bond hearings and had them denied or unable to post bond. with respect to those -- >> what would be the
constitution constitution constitution constitution constitutional entitle mmt to keep those people who have not a risk of safety to the country or otherings, however you want to define the danger element. what's the constitutional entitleme entitlement? >> with respect to those individuals, those are individuals who have had bond hearings and had them denied or have been unable to post bond. and the requirement that we have concerned about there is that the government bears the burden of proof to show by clear and convinces evidence every six months that they're not a flight risk or not likely to resid vat. >> to clarify two things. one, what have the people in that category done that would make them subject to removal? and two, does the government
read the bond specification in 1225a as discretionary? >> so, your on nor, i think the government's respect is to provide bond hearings consistent with the statute, is my understanding. and that -- and so those are people who have had bond hearings and we do provide them there. i'm sorry, your your honor, your first question? >> who would -- >> there may be individuals who have entered illegally but not committed the kinds of crimes that would make them inadmissible under 1182 s 2 or deportable that would subject them -- the types of crimes that would subject you to 1226c for the mandatory detention. for that class we're objecting to the clear and convincing evidence standard which we think the ninth circuit had no basis
of adopting. >> am i right in bail hearings it's clear and convincing to show that they're a public danger but only by a preponderance of the evidence to show flight risk in regular bail hearings. >> it does vary by the type of crime. in some cases it's the criminal who has to show by a fre pond rans that he's not likely to resid vat or be a flight risk. in some cases the government bears the burden by showing clear and convincing evidence. >> may i ask a -- >> i think not for flight risk. >> that might be right, your. i'm sorry, justice. >> clarifying question. for an alien who is found in the united states illegally, has not been admitted, are they held under 1225b or are they held under 1226a? >> so they are held under -- if they are not -- if they are not detained within 100 miles of the
border or within 14 days. so they've been longer than those two things, then they're under 1226a and not 1226c. >> so what happens to -- i don't know how many of these would exist. but an alien who has resided within 14 miles of the border -- not 14. >> within 100 miles of the border. >> 100 miles from the border, that's possible, who's been there for 20 years. they would still be held under 1225? >> i'm sorry. they would be held under 1226a. if they hadn't committed other crimes and so therefore were not subject to the mandatory dissension under 1226c -- >> i'm assuming no criminal alien. i'm talking about an alien who has come into the united states illegally without being admitted who takes up residence 50 miles from the border.
>> i believe the answer is they are held under 1226a and that they get a bond hearing under -- this is at, i'm sorry, 156a -- >> let me finish your question. earlier you said you were objecting to the burden of proof. >> yes, your honor. >> are you objecting to the concept of prolonged detention without reason is not appropriate for these aliens? >> we believe that they -- >> and the reasons being flight risk or danger. >> we believe that whatever due process rights that they have are met by the statutory scheme which gives them an initial bond hearing and then allows them if there are changed circumstances to seek a redetermination -- >> except that that bond hearing, that additional regulation says that the length of detention is not one of the factors that justifies reconsideration. >> that's correct. >> and so if these are people
who have been here for decades, let's say, don't you think due process would require some periodic review to ensure that these people are properly being held? >> so, your honor, we don't think that pop two things. the ninth circuit went beyond that and imposed a clear and convincing evidence standard which does materially change the calculous and the government's burden there. and second we do think that the national bond hearing in conjunction with the opportunity to bring forth changed circumstances -- and that may be -- >> except the regulations are saying that you don't consider the length of detention. that's what a judge does in bail hearings. that's what a judge does in almost every other detention which is at a certain point your calculous changes, the balance changes when the detention becomes unreasonable.
>> if i could step back. we think that the way to think about the case for the people who are not in the arriving aliens category is that as long as -- what the court said in demore and i think this is the focus of justice kennedy's concurrence in demore. if the purpose of detention is being served, that the government is moving reasonably quickly to accomplish removal so they're not in a situation where the end of the government detention can't be observed, then absent very unushlg circumstances, that detention is constitutional. so we do think that -- we do think that the scheme we have in place for the 1226a individuals that your honor is identifying is constitutional. i will say that -- >> i'm sorry. >> i was going to shift to something else. >> i was going to shift to something else. >> let's do it. >> let's shift to 1226c. >> okay.
>> and not focus on the statute so much but focus on the constitutional question. and i think your brief indicates that you think that there are some constitutional bounds. and so i would like for you to talk to me about what those constitutional bounds are. and when a judge would find them. >> so, your honor, we think the constitutional down is that the standard that justice kennedy set forth in demore. were there to be an unreasonable delay by the government in pursuing and completing deportation proceedings, it could become necessary to inquire whether the purpose of detention is not to facilitate deportation but some other reason. so it seems to us that the analysis that a court would undertake is has there been some sort of unusual situation or misconduct on the part of the government or delay on the part of the government that suggests the -- >> what happens if you can't
point to any particular evidence of government misconduct, but that you're in a situation where the government just has very very big backlogs and everything is taking a long time. so let's say the average would be that the government wouldn't make a decision for three years. could the court simply say, well, three years is too long. doesn't really matter what kind of evidence you have, three years is too long. >> so, your honor. i think our position that that situation would be that as long as the government was diligently -- i mean, if it were 20 years, i mean, we could go on, then of course that might be a concern that in fact we were no longer trying to e fetch wait removal. i think we would make the argument in the three years your honor was hypothesizing. but that's not the situation we have here. >> you say -- right there you said of course 20 years. now as soon as you utter words like that you are outside -- and
it's in conceding, i take it, that where it says the ag may release an alien described in paragraph one -- >> this is 1226a. >> it's 1226-2. something 2. it's c2. >> i'm sorry. >> the words strong for you in my opinion are the words only if. >> correct. >> only if the witness program. you're saying it's not really only if. there are exception fall circumstances. where in he's been there for 20 years and we haven't started a removal proceeding? or let's say he has an emergency operation, had to be in the hospital. we all can exercise our wonderful legal imaginations and think of weird instances that it's going to prove that only if isn't literally only if. >> i want to be clear about what i'm saying there. i don't think the attorney general has discretion to release in a situation i was disu just discussing. >> i know that. >> i think that's a
constitutional requirement. due process would be implicated at that point. i'm not saying that at some point the attorney general has discretion to release. the statutory is mandatory. >> but it says only if you go to the witness program. >> correct. >> but my point was -- and you did it accidentally but on purpose. you said 20 years would be different. >> to be clear, your honor, i did the as a matter of constitutional law. >> why. >> because -- >> why not say like in the law words like any or only if are always interpreted in light of unusual circumstances, not being absolute. and you get something unusual. okay. why not do that rather than appeal to the constitution. that may be a picky point but why? >> but i think it's important -- >> one reason i asked her contusion. >> justice kagan asked me to set aside the statute. it was a constitutional analy s
analysis. there was a deliberate categorical standard by congress based on years where congress tried to deal with the concerns about recidivism and flight through a number of different mechanisms and what congress found was it u hard to predict and had serious consequences and congress opted for -- >> i suppose it's an area where the safety valve, the area of hebeas corpus might come into play. >> absolutely. what congress understood was that it was legislating against the backdrop of hebeas which provides the fail safe that justice kennedy identified in demore openen congress legislated with absolute text an that doesn't admit for the kinds of exceptions that i think your honor is pressing. >> if i could go back to the constitutional point.
if you put demore aside, i think we would look at our precedent and say you can't just lock people up without any finding of dangerousness, without any finding of flight risk for an indefinite period of time and not run into due process. you have demore but demore was based on the assumption that it was going to be a brief time, based on statistics that have proved to be inaccurate. and the question is why the constitution itself -- and you can do it through hebeas proceedings or whatever the procedure is but why the constitution itself does not set an outer bound. and the way that we've consistently required, for example, civil commitment cases. >> so you've packed a lot in there. i would like to take on a number of things there. but the answer to your last question is i don't think it's the focus on the amount of time that's really the way the court should look at it here. and this i think was the insight in justice kennedy's concurrence in demore.
the amount of time increases in part precisely as i indicated, congress provided is a substantial number of substantive and procedural protections. they are right to a lawyer within open interpreter, the right to gather evidence, they can appeal to bia, appeal to the court of appeals. but with this process comes time. and i think a focus on just the length of time without the reasons for the delay, wouithou looking at the fact that aliens routinely and understandably file for continuances and to impose a six-month rule is really a mistake. with respect to demore i would like to address your honor's concerns. you are right that the statistics we provided to the court were inaccurate and we apologize. >> i'm not blaming you. it's partly what the statistics were provided and what the courts did with them. it doesn't matter who was to blame or not to blame.
demore says that the average is five months. it turns out that the average is more like a little bit over a year. >> the reason why i think demore is goods is this reason. i think demore rested on two pillars. first was the judgment that flight risk and ra sid vichl are real problems and ijs are bad at predicting and thereafter congress could make a judgment in this area of immigration law that mandatory detention was appropriate. and second, the purpose of the detention was being served. to effectuate removal and the detention was not going to be permanent and not going to be indefinite. those are true. it is true that this court assumed incorrectly that the length of detention was five and a half months. but in demore itself, the alien had already been detained for more than six months for 197 days and the court was sending that individual back for an ij
hearing and a bia appeal. and so even under the court's erroneous assumption that there was going to be five and a half months tacked on, we're talking about a defengs ftention for a . with respect to the time limits, they're not trivial. these are serious matters and we recognize that. the current median time for the demore figures is around 233 days now but it's gone from seven to nine months over the years and the average time is more like ten to 12 months. >> when it is not enough when it's not the alien's fault. and you seem to suggest that if budgetary matters or personnel matters are what are inflicting the delay that that's okay. is there any -- you said 20 years is the end point. but given that we have a due process right not to be held indefinitely, even though it may have a distant point of release
somewhere in an unknown period because the government now, i understand, if an alien asks for an aajournlt adjournment, bia ae taking month to give them a date. at what point does the government's behavior come into this analysis. >> i think the government's behavior -- >> intentional or not. i would assume if the government was delaying because it wanted to that's unconstitutional. >> absolutely, your honor. >> but at what point does indefinite albeit with a lengthy far out detention rate become unconstitutional. >> we don't think that the mere date itself is what makes it unconstitutional. to be clear -- >> no. what makes it unconstitutional in my mind is the unreasonable
delay or detention. >> right. so a couple of points on that, your honor. first of all it is not our view that most of the delays that we're talking about here in the lengthy cases are situations resulting from government resource problems or things of that thnature. the aliens routinely seek continuances and they do that for good reason, to build a record. what most of the aliens are seeks is discretionary relief. and if they're seeking discretionary relief they want to build the record. i don't think the record is that most of the delay is ij -- lack of immigration judges or bia resources. and indeed your expedites the proceedings that involve detained aliens. that is a government policy to deal with your honor's question. >> assuming that there is a constitutional limit of the type that's been discussed, is
that -- do you think that can be addressed in a class action or is it something that can be addressed only in individual hebeas cases? >> your honor we think it's clearly the latter and we think that is one of the major flaws of the ninth circuit's dedecisi. at i adopted a rigid rule that applies to aliens no matter what is the cause of the delay, no matter whether the alien is a criminal alien were seeking discretional relief or not discretionary relief. that one side fits all approach is not the way to do it. the way to do is it through hebeas proceedings which is -- >> i guess i don't understand that. why couldn't a court, whether it's the ninth circuit or whether it's this court in reviewing the ninth circuit say here are the constitutional guidelines, here's the way to -- it might not be a one size fits all. it might be a presumptive limit. but the ability to go beyond that in individual cases.
but to set those -- to set those guide posts and then let the individual determinations take place. >> so in theory, your honor, the short answer is the due process clause doesn't usually permit that kind of broad based approach that doesn't take cog nigh zens of the various durchss between the aliens on the ground. i think for example the different -- >> wouldn't it be better to side guide posts that everybody in the country would know to follow rather than having one suit pop up here and one suit pop up here and another in another place and everybody would be treated differently? that does not seem like a good immigration system. >> the first thing i would say, your honor, the one thing that we know shouldn't be the case is what the ninth circuit has done which is the opposite of that, apply a single standard to everybody regardless of the cause of the delay. i mean this gets at the very concern that the court -- the
dissent, justice kennedy's dissent and then the majority highlighted. this we wouldn't adopt a clear and convincing -- >> i wouldn't suggesting a rule that was quite as rigid as that. but i was suggesting more that the courts say pick up some of your language in your brief and say that the deenintention has serve the purposes for which the detention is meant. and presumptively that is, pick a number, nine months, a year. six months. >> your honor -- >> something pretty reasonable but only presumptively if there's some exceptional circumstance that could be extended. >> so, your honor, i think it would be within the court's pow tore do that. we don't think that's the way we would approach. >> i'm sorry, you do or don't? >> i'm sorry we wouldn't -- >> your first thing. >> we think the court would have that power but we don't think
that's the way the court should do it. what the court has done in a due process decision is have applied challenges and we think that's the senable way to go given the tremendous variation -- >> the court has to grant or deny relief. what would be the relief if the court says well, we here not going to say what the situation is going to be for any of the members of this class. here are our thoughts about how individual determination should be made. >> i agree with that, your honor. that is why we don't think the court should do that. to be year, the court has the power to give guidance but we don't think that is the approach that's most consistent with the due process clause or the way to think about these categories of cases. >> how about the aba brief here? >> i'm sorry, could i just finish? we do suggest in our brief that there are, there are indicators, you know, that 90% of the ij hearings are done within 14
months and 90% of the bia proceedings are done within 19 months. and those we would offer those to the court not as indication that the due process clause has been violated but those are situations in which one might reasonably in an as applied challenge take advantage -- take justice kennedy's opinion up on its standard and do the searching inquiry that we would think about. >> we are in an upended world when we think that 14 month ors 19 months is a reasonable time to detain a person. >> i totally understand that. but what i'm trying to suggest to your honor is that is part and parcel of an overall scheme that offers tremendous process to the individual alien. and part of the reason -- >> is it not that process at least with respect to 1226b is to ensure that the person is not a flight risk or a danger.
>> your honor, it is to e fetch wait congress's category call judgment that either there is a flight risk and a risk of recidivism and it's very hard to predict those. >>those. >> i have a couple questions i'd like to ask actually. it's a complicated statute. you can correct me. i think you have some extra. >> i'll give you extra time to answer the questions. >> talking about three categories. the first category are the people who show up on the border. that's mostly 1225. i don't see any words there that would prevent interpreting the statute from saying of course, you have a bail hearing after six months and under whatever standards. i'm not going with the 9th circuit standards, et cetera. i don't see the words. you're going to tell me the words in a minute. but the more important part i think is this criminal part. and there i've divided my mind into three stages.
stage one the person is released from jail let's say. and the statute says attorney general, pick him up. then there's a period of time where he says i have a right to stay in the united states and the ag says you don't. and during that period of time, we have the only if language. then we go to the period of there's a final removal order. and that's a 90-day order. and there i see no way around the statute. i agree with you. that 90 days you cannot get out of the statute. it's definite. then the removal period ends and we're into zad vidas. demore was talking about a brief period of time. let's start with the criminal. let's look at that statute. as you would like to interpret it, during that first period, remember the second period i'm with you. the 90 days. the third period is settled.
that's add vidas. let him go after six months. we're talking about the first period. i think take my word for it, i might be wrong, i'll go back, i wrote the zad vidas thing. i think it said six months. i might be wrong. i'm often wrong what i think i said. so we're in the first part. on that first part, it's a pretty odd statute that have can say you don't, we can keep you for two years, you know, or three or four. you've just been out of jail, hey, your term's over. your punishment's over but you've got four more years here of punishment while we try to get to stage two, which is called the removal record. that's what's bothering me. it is bothering me that as a lawyer it produces an odd statute, as a person who tries to interpret the constitution, i say what happened to the notion that you do let people out on
bail when in fact they're not a flight risk? and how can they be punished for four more years? maybe it's the constitution. maybe there's a around that only if language but the concern is the same. now you have all my questions out there and i know -- do what you can. >> i'll try to be brief because i'm cognizant of the chief justice's generosity here. i think the statute squarely forecloses it at both stages. page 156 a of the appendix to the petition, the statute starts out 1226 a that the alien may be arrested and detained pending a decision whether the alien is to be removed from the united states. >> may. >> it does say may there. then it says except as provided in the subsection c of the section and pending it such decision the attorney general may came. >> may. >> it says except for subsection c and subsection c is one that
says unambiguously shall take into custody and release only if. >> c is the criminals, isn't it. >> yes, your honor. >> criminal is a different matter. go ahead. >> thank you. i reserve the balance of my time. >> thank you, counsel. mr. arulanantham. >> may it please the court, i think the dispute between it the parties is narrower than it seems based on what my friend acting solicitor general has said. we agree that length by itself doesn't make detention unconstitutional. there doesn't need to be a hard cap on detention. we're just talking about the need for an inquiry, the need for an hearing that is viltize std rather than a categorical presumption that someone is a danger and flight risk. >> are you making a statute tritt -- it was based on an interpretation of the statute, wasn't it? are you making a statutory
argument or a constitutional argument. >> we are making both. i think the dispute is narrower. the primary focus, urn, is whether the mechanism for implementing that whether it's constitutional or statutory constraint has to be habeas or unsatisfied as justice kag condition suggested it could be similar -- >> i understand that. to me it makes a difference whether we're interpreting the at that time tute or the constitution. on the language of the statute, i think you have a pretty tough, you have a pretty tough argument. >> your honor, we concede as to 1226 c, what you're calling the criminal or mandatory detention class, we havings to win there's a serious problem. their interpretation is not completely unreasonable. >> is that a constitutional argument or statute? constitutional avoidance is we don't think we can interpret the statute this way but don't have the guts to say it's
unconstitutional we'll say constitutional avoidance, this is what it means. >> but we think that the statutory interpretation here is no less plausible than the one. zavidas. a 90 daman datory retention period followed by requirement for release and the exception. >> what do you do with only if. >> only if applies to the initial detention and authorizes people to be released even immediately after they're being picked up if they are in the witness protection program. it doesn't speak clearly to what happens when detention becomes prolonged. the statute said you can detain beyond the removal period. the court found that wasn't clear enough to authorize long-term detention. >> most zadvidas turned on the may. it gave him permission. as he just pointed out, there's may, may, may, may. in the criminal side, on the contract side, not talking about
people at the border, pretty strong argument people on the border, but it says the attorney general may release an alien described in paragraph one, the criminals coming out, only if and then it's the witness protection program. he says how do you get around that one. >> understood. i want to say one more thing about the statute. four months after the decision, congress passed the patriot act that didn't only, it, clearly authorized long-term detention and six month intervals. it did it not only in post order cases which was speaking directly to zavidas but also pending cases like this one. subsection a 7 of that statute authorizes long-term detention is, six month intervals while the case is pending and it authorizes it substantive review whether the detention should continue, whether the certification remains valid but only in national security cases. that's the rest of our statutory
argument that provision that specifically authorizes long-term detention but limited to national security cases in pending cases really makes the government's interpretation hard to make sense of. under their view, they have more authority to detain people with simple posession offenses or petty thefts than they have people accuse kds of terrorism grounds and they have even more authority in the terrorism cases under 1226 c under c 1 d than they have under the patriot act that congress gave them four months after. >> are you saying 1226 a, the patriot act provision makes the government's interpretation of the of 1226 c superfluous. >> yes as to terrorism cases. all the terrorism cases cases where a person is deportable on a terrorism ground, they already on their view more authority in 1996 than congress gave them. >> there are quite noticeable differences between the two the
provisions. i don't know how far this argument can go. for one thing, the list of in 1226 a, aa 3a there are listed one, two, three, four, five, six categories, and four of those are not included in the patriot act provision. isn't that right? >> that's true but the terrorism grounds are in both. patriot act presumably meant to focus on terrorism. >> that's one thing. it under 1226 c 1, the attorney general shall taking into custody any alien who all right under then sub d of that is inadmissible or deportable. so the person must be inadmissible or deportable. under 1226 a, the attorney aa 1, the attorney general, well what
is it, aa 3, the attorney general has reasonable grounds to believe. >> yes. >> so it's a different standard. >> yes, although the government interprets it the language you read about is it admissible to mean they believe it whether or not it's been charged. we have to establish that there is a serious constitutional problem. there's no question about that. >> can i ask about your statutory interpretation on 1225? that's the one where it says the alien shall be detained for and then one provision says for further consideration confident application for asylum and the other says for removal proceeding and you say that that applies only until the relevant proceeding starts. what applies after that in your view and where would we find it in the statute? >> it's 1226 a which says the attorney general may detain or may release pending a decision on whether the alien. >> very odd interpretation. will if i tell my children i'm only going to visit them for
christmas, that doesn't mean i have to leave on christmas eve. that's your interpretation. >> no, because sometimes four is read that way. other times four means for the purpose of, and the way you know that in this provision, there's two ways. first if you are denied a credible fear interview, when congress rewrote the whole statute they wrote the word pending rather than for into a different subsection, neighboring subsection for people who lose the credible fear. they're not in our class. our class is only people who pass the credible interview are found to have a significant possibility of prevailing in their asylum. >> i understood that the authority ends once the proceeding begins. then you go to 1226. >> that's right. then you go to 1226 a. you still have detention authority. >> that's a very odd interpretation of the statute. >> urn, the other argument for that interpretation is that the government already provides bond hearings to people detained under color of that same statute
that you're talking about that says you shall be detained for further consideration confident asylum interpretation. if you cross the border in the desert and then are arrested and pass your credible fear interview, the government, you're still under that same statute shall it betained. the government doesn't wait for six months. it gives them to them as soon as they're in the immigration court. we have a very straightforward application of clark v martinez. the same statute applies to two groups, one our class members who present themselves at the border. the other the people who cross in the desert. the government is the already providing bond hearings to people who cross in the desert. that the doesn't distinguish between the two. >> what happens if they present themselves at the border or the desert and they say i have a right to live in the united states? you've made a mistake in respect to me. what happens to that person? >> if you're crossed in the desert, you get a bond hearing assuming that you establish you could be summarily removed.
>> of course. you say i don't want to leave. i have a right to live here. >> then you get a bond hearing under 1226 a if you establish you have a credible fear. >> what happens if you're at the boarder >> you don't get a bond hearing. you're only subject to the parole process under which you never get a hearing on danger and flight rick, the jailer is the one deciding whether you can get yet be detained even for the years. >> what's the language of the statute that you believe the government points to to say you never get a bond hearing. > it says shall be detained for but they're reading that language to permit bond hearings for one set offed of people ep detained under it. if you can read it for them, you can read it for the other people. going back to the constitutional question we were discussing earlier and habeas, i think it's critically important whether the enforcement mechanism for the right we're talking about here is available to immigrants and immigration court directly or instead has to come can via
habeas there's two reasons. first this as a class of mostly unrepresented people who are you be automobile not familiar are our legal system. the vat majority are. we know from this record and experience for years in the lower courts most of them cannot file habeas petitions. if you make the only enforcement mechanism habeas. >> you mean cannot as a practical matter opposeded to a legal matter. >> yes, as a practice matter they cannot. we know this is a matter of experience. the habeas cases take months to decide. in fact, in the 11th circuit, they take about 19 months in the third circuit, they still take almost six. as a practical matter it's not a meaningful remedy for prolonged detention if that's the claim you're bringing. the second serious problem with it, this court has never before held that a due process right can be vindicated simply by the availability of habeas. think about it. pretrial detainees they have
habeas. why do they get a bond hearing in a matter of days? civils, they have habeas. why is there a requirement you have a hearing at the outset of civil detention? it would be a fundamental shift. >> i'm sorry, i missed your argument. they have hearings. why do they need habeas? >> excuse me, i apologize for that. this court has held there's a hearing requirement as a matter of due process for people in pretrial detention, for people facing civil commitment, et cetera. and that is not dependent on their filing a habeas petition. the due process clause gives that right. the hearing has to be provide whether or not you file habeas. similarly here if the due process clause requires a hearing at some point in time, it should require that hearing whether or not the detainee has a lawyer they can get to file a habeas petition. >> suppose the due process clause requires something more complex than a simple date? suppose it does require a little bit of individualized determination as to whether it should be six months or in a
particular case a little bit longer. how does that get decided and what vehicle? >> i still think the vehicle would be this case. i don't think the fact that it's a class action is a barrier to that. we have saw the relief on behalf of people detained for years. if this court said, for example, that a detainee who is engaged in dillitory tactics is not entitled to a danger and flight risk determination in their case, that's relief that would then be available because you would still get the inquiry. somebody has to look at the case at some point and see is this the case where there's dillitory tactics or the person didn't spend even a day in jail. >> that seems to be a strong argument against using the class action as a vehicle to resolve these questions. i mean, if the nature of relief depends upon peculiar circumstances, it is seems to me the commonality requirement is lacking. >> let me give a procedural and substantive answer to that, mr. chief justice. the government did not steek
conservative on sirte. they re-raised in the summary judgment and didn't seek review of it. they have conceded tipicality and commonality for purposes of this proceeding. >> the decision zst 9th circuit was based on interpretation of the statute. you want to affirm on an alternative ground which is it's unconstitutional. so i don't know how far you can get with that argument. if you want to be very strict about what's before us, we could simply say is, the 9th circuit's interpretation of the statute is wrong and remand for further proceedings to the 9th circuit. >> i think that would be consistent with a class the way the government has the class certification. >> it would be consistent with the way the 9th circuit interpreted the case and the case that's here. we do not have the constitutional issue before us. >> we've argued it in seconds 1 of our brief. you're correct that the 9th circuit didn't rule on a constitutional ground. the second point i want make though is, everybody in the
class in our view is entitled to an inquiry. someone has to look at the detention and decide, is this a detention which remains reasonable, does it continue to be reasonable in relation to its purpose. that's our argument. many of the people under the injunction don't get out, about 30% don't get a bond set. of those who do, another 30% don't actually get out under the bond. >> is that a typical remedy in habeas to require inquiries in every case? perhaps i'm wrong. but i would have thought habeas is either you can be detained or you can't can be detained as opposed to a procedural across the board requirement of a hearing. > the ham dedecision did, the court requires hearings. that particular case was a habeas but sets a due process rule that applies in other kays. the court has to determine the conditions under which the detention would be lawful. as i said, to consign individual
detainees here to habeas petitions is to close the house door. >> tell me why the regulations under 1226 a are inadequate. there's an entitlement an administrative or the response by the eia or the ins, whatever they're calling it today, was to create an administrative process. so why is the one here inadequate? >> we have very few quarrels with the 1226 a regulations that govern people sfwoild bond hearings. obviously as their promulgated now they wholly exclude people who have certain criminal convictions and. >> standing on its own, those aliens who have been here for a long time but didn't commit a crime. >> yes, our view said on the briefs we believe the burd of proof should be on the government by clear and convincing because that's the standard used in significant preparations of liberty and periodic hearings and such. the most important thing to us
is that it be a meaningful hearing. there has to be a way for a detainee to raise, i was not spent even a day in jail and yet i've spent ten months in immigration detention or like mr. rodriguez, i came here at the age of 1. i don't know anybody in the place i'm from. or i'm going to win my case because i'm eligible for cancellation of removal which is true of more than half of the mandatory subclass. there has to be a way they can make these kinds of arguments. >> were are those arguments not available in the administrative process? >> they're available under 1226 a if we could get everyone on to that statute it, they would be available. >> i'm looking just at that statute. i know you want to look at 1225 and 1226 c, but i'm looking just at 1226 a. >> yes, so our position is all of the class should properly be understood to receive the benefit of the 1226 a procedures and our only disagreements with those are in section 3 of our brief.
the burd of proof and that the hearings be periodic. sometimes people get detained for three, four years. i've had clients detained seven years. there has to be a peddic review. >> of long-term detention is under 12826 a but you're not arguing that they have to be like the 9th circuit said, a court review. it can be simply an administrative review. >> no, your honor. it has to be by a new neutral decisionmaker. we draw in part from mooris brewer which justice kennedy cited in your dissent that there has to be a knew the dral decisionmaker. isis officials making the decisions are essentially the jailer. you won't be quarrelling if it was an immigration judge. >> absolutely not. that's all we are seeking with respect to that, your honor. >> that's not what exists today. >> it exists for people detained under 1226 a as they understand the statute but doesn't apply to
the people with criminal convictions or. >> i'm trying to concentrate on 1226 a. >> okay, your honor. >> what's wrong with the administrative process? >> as it exists today. >> only that the burden of proof in our view should be clear and convincing on the government and there should be a periodic hearing or as your honor suggested if you take make them say the length of detention is a relevant factor so that you can get a new hearings based on the fact that the time has passed, that would help. to be clear, your honor, well over half of this class is not under 1226 a now. we'd have to win for it to be meaningful relief for the vast majority of people, we would have to win when detention becomes prolonged the regulations that govern 1226 a then come to govern both the arrivings and the people. >> that's pretty hard to do with 1226 c 371226 a sthas applies to everything but.
the statute is pretty clear. >> so in that case, let me go back to the constitutional discussion we were having earlier. my friend had suggested that that hearing that's available even perhaps only as a matter of the due process clause it's sufficient for it to focus on whether the government that is run proceedings very quickly so that if a person is engaged in good faith litigation of a substantial defense, in the government's view as i understand it, that's a sufficient justification for detention. that is actually the most serious problem with their view on the due process clause because if a person has a substantial defense and they're litigating that in good faith, that does not necessarily mean that their detention is serving a reasonable purpose. it's almost inversely correlated to it. if a person has a substantial defense, it's far more likely they're not a flight risk because they want to go to immigration court to maintain their immigration status.
similarly if a person has a substantial defense, that means they're not in a class of people that congress wanted to mandate the deportation of which probably means they have a less serious crime. if you are an aggravated felon, you're not eligible for lpr, cancellation of removal. most of the mandatory subclass is eligible for that. >> do you think that flight rick and danger to the community are both continuums? >> yes why, your honor. it has to be reasonably related to the detention. so excuse me, your honor. >> if you have the situation where the person is litigating in -- there's been lengthy litigation but the judge can't say this is done in bad faith or it's dillitory, it's very lengthy and keeps going on and on and on and you have a flight risk someplace on the scale and a risk to the community that's someplace on the scale. how can you address how
something like that can can come out should come out with any kind of a categorical role? >> so we don't advocate how that person releasing that person on a categorical rule. we're talking about getting the inquiry. that is a very individualized judgment that the judge has to look at how serious is the criminal history here, how strong are the equities as to flight risk. >> you do say or the 9th circuit says it has to be clear and convincing evidence which is higher than the flight risk standard in the standard bail case into it is. remember these are only hearings happening after six months. you get the bail hearing in a platter of days in the criminal context. >> focusing now on the people who want to come into the united states. if they're in the desert and they say, i won't go back because i have a right to live here, they do get a bail hearing. so if the whole thing is taking a long time, they'll at least have a bail hearing. if they're at the border, and they're coming in under the same statute 1225, they say i'm not
going back. i have a right to live here. and then there is no hearing? >> that's correct, your honor. >> i don't get that because what it says is may throughout. until you get to the word shall be detained for a proceeding under section 1229 a, is that right? >> that's correct. >> i look up section 1229 a and section 1229 a which i've been reading is doesn't say anything about keeping them in detention. so why isn't the simplest thing in the world once the person is at the border and say we're going to detain you for 1229 a. you say have it tomorrow. if they don't have the it the tomorrow you say i'm into the 12929 a it, hasn't been scheduled yet and therefore, you get bail after six months. have you tried that one. >> that's our statute tritt argument. the government says the regulations even though the person's in front of immigration journals the government says that the regulations prevent the immigration judge from having the power to release the person on bail. >> so it's the regulations, it's
not the statute. so we could say, i'm just saying you're going to agree with this which is the problem, i need a disagreement. the -- you could say they do it for the desert. the language doesn't for bid it. it throws you into 1229 a. it's possible to interpret the statute as saying for purposes of a bail hearing the 1229 a starts tomorrow. we could do that one on the statute if it is correct that you should not hold a person for years in the united states without giving him a chance to get back to his freedom through a bail hearing if appropriate. okay, c. i'm still stuck on c. and the reason, the value of a statutory interpretation is that we're dealing with tens of thousands, hundreds of thousands or millions of people possibly. and it's an administrative agency organization and they need a rule.
they need a rule. and if we can interpret the statute you can give them a rule. and that rule then can have lots of discretion in it through bail hearings, et cetera. but i haven't heard from you yet what -- i see no way if you want to tell me, i see no way of getting around the 90 days. that 90 days seems to me they don't get a hearing during the 90 days. a removal order is there those people are not in our class. >> not worried about that. >> after we've got zad have i disand before the 90 days starts, they say gee, shouldn't there it be an exception here so the period between the time they're released from their punishment to the time we have the hearing, if that goes on for ten years, the person is supposed to be punished for six months, not for ten years. i got your argument. what do i do with the sflaung and you know, language counts.
>> two thoughts to work on the language. first, assuming nobody is willing to accept 1226 c can be interpreted every court of peas said it could be interpreted to have some reasonableness limit in it. if i can't persuade urn about the due process clause often the court does use rules of administratability where needed to create uniformity of practice. >> the court below didn't reach your constitutional argument. right? >> it did not, your honor. >> do you expect to us do it in the first stance? >> there's a voluminous record. it's briefed. but the court could remand for consideration. >> i'm surprised that you answered the question that way. it seems it's quite obvious what the court below thinks as to the constitutional law. where did they get this from except as an understanding of what the constitution required. >> yes, your honor. the court i think -- maybe they didn't have the courage of their convictions. if they do think it's unconstitutional, they could have said so rather than
strepping are the principle of constitutional avoidance to the lengths they did. >> your honor, i won't pretend to understand what was in the heads of the 9th circuit judges except that they had seen prolonged detention problems for years and decided in 2005 that mandatory detention applied only to expeditious removal proceedings and there continued to be cases flowing up four years,ly a client 4 1/2 years detained while the government was appealing, seven years that was part of why the court thought i would suggest even if it's on due process grounds, you need a system that is straightable. the person doesn't even know the judge doesn't know when to pull the case off the shelf and look whether or not to conduct inquiry that you were talking about unless you have some kind of trigger that allows them to did do that. if you look at say the 3rd circuit experience, they said in 2011, it had a limit as a statutory matter and then there should be an inquiry into
whether or not the detention was permissible. they reject the time period. >> so why is the -- the 9th circuit remedy went a lot further than savalas did. savalas just created a presumption or did away with the presumption. here the court is actually requiring. > but your honor, it's requiring it, requires release. this is just the inquiry. it's quite similar. what we're saying is, unless removal is imminent, it's just a presumption, unless removal is imminent and there's a two-week window to conduct account hearing under the injunction, you should look to conduct an inquiry to see whether or not danger or flight risk actually justifies the continued detention of this person. it's not a cap on detention at all. and as i said, many people don't get out. i think it's quite consistent with the approach the court tooking in savidas.
going back to the question of habeas versus the constitutional rule, in the 3rd circuit four years later, there's massive disagreement in the lower courts and amongst immigration judges about how you count this or how you count that. they say maybe it would be good to have a nine-month 12-month window. 11th circuit does the same thing. we want to give guidance. it can't be you have to file a habeas petition to get the inquiry in my view the due process should require. having some kind of guide, even if it's not as filmed you have to do it within two weeks of six months is, some kind of temporarily limit so the person can going directly to the immigration judge not to try to get to federal court which most can't do. and say can you please now conduct an individualized -- >> the problem is that looks an awful lot like drafting a statute or regulation. it seems to me that's quite a leap. our job is to read the statute and if it presents -- if it's
unconstitutional, that's our job. but we can't just write a different statute because we think it would it be more administratable. >> i think it's not that different from what the court did a number of cases riverside v mclaughlin, in schnackenberg where the court said six months is the maximum time you can go to prison without a jury trial. here is a similar kind of rule. even. >> administratable constitutional rule you're saying. > these are all constitutional cases. >> we're not making up a statute. we're devising a constitutional limit. >> mcneil in the civil commitment context is a constitutional rule. >> so we're now in the context of deciding the constitutional question and we put the -- i know you want us to. that's fine. i'm just saying it's pretty unusual for us to do that in the first instance. when you're talking about the administratable rule, that argument is being made on the assumption that it's otherwise unconstitutional. >> in the cases that we cite in our brief are all constitutional administratable rules that have
gone into effect. the ones i was mentioning. i actually thought that there was a colorable claim that because congress specifically authorized six months of detention prolonged detentionings in national security cases you could read the at that time tute that way. obviously, that doesn't seem to be a particularly persuasive. the last things i'll say. >> reporter: know my time must be limited on the relevance -- >> you get a few extra minutes, too. >> thank you. mr. chief justice. the record is replete with examples where the immigration judge makes such a big difference because they're just a hearing where you can second-guess -- not second-guess, assess the decision of the jalg authority. so the merid adec cla ration is one such example. a person with a nonviolent criminal history is detained for three years. he gets out on $5,000 bail. exhibit 73 to my declaration,
the ethiopian asylum seeker, he's passed the background check. he's passed the background check and he's found to have a significant possibility of asylum and now he's going in front of the deportation officer who is conducting his parole review. the officer chooses not to believe him. when he finally gets in front of an immigration judge, the judge says but you've already passed the background check and there's no question from here and we have a witness now because we're having a hearing this person actually is who he says he is. that's all we're talking about. just a minimal requirement of a hearing in front of a neutral decisionmaker for people who have very, very long periods of incarceration. that minimal requirement we think is available under the statute and also under the due process clause. >> four minutes, general gershengorn. >> thank you, mr. chief justice. i'll be brief. i wanted to make first a short point on the patriot act to shore up the construction of 1226 c. there are two as justice alito
suggested two fundamental differences with the patriot act. first is that it allows for a certification by the attorney general or the deputy general. it can't be delegated. that is not reviewable different than the 1226 c where alien gets a joseph hearing and subject to bia review. the second piece of the patriot act can that it overrides zabidas and permits the attorney general to provide for detention even when there's no foreseeable likelihood of relief. it is a situation in which there is, of course, some overlap as one would expect in a series of sat tutees dealing with terrorists. but the -- there is no superfluidity and they're dealing with very different things that gives extraordinary powers to the attorney general for a limited group. i wanted to touch base to address some of the statutory arguments with respect to 1225. i don't believe for the reasons justice kennedy said, i don't believe that the at that time statute really is ambiguous.
it says on page 152 a it, of the appendix to the petition, the alien shall be detained for further consideration confident application for asylum and then on 155 a, it says the alien shall be detained for a proceedings under section 1229 a. justice kennedy. >> i wasn't thinking of necessarily asylum seeker. i was thinking of a man who goes to a foreign country who's an alien. he has a family in the united states. he comes back. and he says, i want to go home. and the immigration officer says no. we're going to keep you locked up for five years because there was something wrong with your initial application. he says, no, there wasn't. they say yes, there was. so i'm simply asking, if that human being who has a family in the united states is in the view of the government locked up for five years without any hearing whatsoever, without any
opportunity for bail, even though he can get out of it simply by abandoning his family and returning to another country, is that the position of the government as to what this statute means? >> so your honor, the position of the government is that that individual would have an individualized as applied challenge in a habeas proceed package. that is not what should drives the stat stury interpretation which is principally what we're talking about here. not only is that correct for the reasons justice kennedy suggested about his christmas visit, but that has been the interpretation of the statute of that language in the statute since 1917. the shall be detained for formulation exists in the -- was in the original statute in 1917. it was in the statute that was indicated in 1952. it has always been understood. >> odd language though. easy enough to say pending a removal decision or pending asylum decision. they didn't say that. they said for the consideration of asylum application.
why would you say that to say pending asylum decision? >> that's precisely why i wanted to invoke the history. that is how it's been understood for 100 years. or 99 years. and it has always been understood the exclusive way to get into the country while those proceed resolution pending is through parole. the government does use parole for a lot of the these individuals. they -- the government is not saying these individuals don't get any process. they actually get process. they have an ij look at their credible fear determination. they have a lot of those individuals are paroled in. we don't think you get there as a matter of statutory. >> what gives you the right to parole? >> there's 1182 d 5 is separate parole authority. the government -- the government's position on parole that ja 44 and it explains how the government applies parole in
these situations. >> thank you, council, the case is submitted. >> live this morning to the rayburn house office building on capitol hill for a hearing on mix martial arts. the house commerce subcommittee is looking into the safety of that sport. also called mma. and the relationship between the fighters and the company that promotes it. oklahoma congressman mark wayne mull is a former mma fighter and sponsoring legislation that would set up federal regulation of mma similar to the way boxing is regulated. texas congress mann michael burgess is the chair of the subcommittee. it's expected to start momentarily. this is live coverage on c-span3.