Scotus 2020: Detention OK provides clear view of stakes for Dems | What the Devil won't tell you
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What the Devil won't tell you

Scotus 2020: Detention OK provides clear view of stakes for Dems

One Cambodian immigrant would say who is in the White House matters a lot

Everything we need to know about the 2020 election pops into focus with the Supreme Court ruling this week upholding a lousy law from the days when Democrats insisted on proving they were tough.

The U.S. Supreme Court ruled 5-4 to allow the detention, perhaps for-freaking-ever, of U.S. legal residents who've committed a variety of crimes ranging from murder to simple possession of pot.

In Nielsen v. Preap, the court gave a “have at it” to the Donald Trump administration’s jihad against illegal and legal immigration. Justice Samuel Alito penned the decision for the majority, upholding a law passed during the Clinton administration. 

The 8th Amendment mentioned something about protection against excessive bail, but what do I know.

The law had its desired effect on Karina Ruiz, a Phoenix resident and beneficiary of the Deferred Action for Childhood Arrivals program, who told Cronkite News: “We’re always living in a state of limbo,” said Ruiz, a mother of three U.S.-born children. “The Trump administration wants to scare us and give us laws that will make it harder to stay here with our children.”

Slicing and dicing immigration numbers reported by different studies tells us about 200,000 immigrants with legal status in Arizona are now living under that kind of fear.

The ruling may be morally objectionable to folks like me but it also reflects the intention of the law. The 1990s was a time when politicians all but ran on promises of punitive whimsy. 

In response, U.S. Rep. Raul Grijalva actually introduced a resolution to get the House of Representatives to apologize for having passed the Illegal Immigration Reform and Immigrant Responsibility Act (remind me again how the U.S. has never lifted a damned finger to deal with immigration). 

Immigrants convicted of crimes were to be arrested and held for deportation once they did their time for certain crimes. This law, among other things, meant they got no bail. Some illegal immigrants skipped out on bail, so lawmakers decreed no migrants awaiting a deportation hearing could ever get bail again.

Go straight to jail, and remain because Congress was cracking down on passing "Go."

Democrats during the 1990s were absolute suckers for crackdownmania. They were trying to show they were tough so they cowered in the corner and simpered their assent to any manner of hard-hitting laws hoping Republicans couldn't call them soft. 

So now we are dealing with an unholy confluence of a dumb-ass war on drugs, zero tolerance on any number of offenses and mandatory minimum sentences that let Congress adjudicate cases from the Legislative floor while complaining judges too often legislate from the bench. Welcome to the most incarcerated nation in the world. It’s a fact that casts the indirect object “Land of the Free” in a frame of '90s-style irony.

Oh well, whatever, never mind.

As the word turns

Grammar, it turns out, played a central role in Alito’s ruling.

That the law says illegal immigrants are to be re-arrested proved the deciding factor in his justification for the decision. The statute says the affected detainees are to be arrested "when released." So what's your definition of "when?" 

Preap himself — his name's in the title of this case — was a legal immigrant who got nailed for doobage. The man got popped for weed and was released from custody in 2006. In 2013, he was arrested again, with the feds set to deport him. Seven years on, liberals argued, does not constitute an arrest upon release.

Justice Samuel Alito decided to go all Strunk & White in his ruling:

The “when . . . released” clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest. If it did, the directive in §1226(c)(1) would be nonsense. It would be ridiculous to read paragraph (1) as saying: “The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail.” Since it is the Secretary’s action that determines who is arrested upon release, “being arrested upon release” cannot be one of her criteria in figuring out whom to arrest. So it cannot “describe”—it cannot give the Secretary an “identifying featur[e]” of—the relevant class of aliens. On any other reading of paragraph (1), the command that paragraph (1) gives the Secretary would be downright incoherent.

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A few things here. Imagine the odds that a law is incoherent. Oh, say it ain't so. 

Also, Alito likes to mock people for reaching a separate conclusion from his. He did it in Hobby Lobby case granting corporate persons the right to be religious because it’s ridiculous to suggest Apple can’t be Presbyterian. The late Justice Antonin Scalia got frisky with his decisions, too, but at least gave us terms like "jiggery-pokery." Alito is just a snot.

And finally, I’m no legal scholar but I know a thing or two about the written language. Alito is correct that adverbs can’t modify nouns. However, "upon release" in no way means seven years later. The authors of the legislation were free to write "after release" to mean "at some point following" if they did not mean immediately after release. They chose not to and made the law hard to enforce.

Where have you gone, Merrick Garland?

The strict constructionists who claim themselves slaves to the law decided to err on the side of their pre-existing agendas. Imagine if Hobby Lobby had declared a religious objection to U.S. immigration law. The court's conservatives would have likely ruled "corporate personhood does not extend to religion." When the politics gets hot, conservatives on the Supreme Court dispense with judicial restraint and become right-wing policy makers.

I gotta admit it, though. Alito has got a point. The law was clearly written to crack down at a time when we were politically obsessed with giving the what-for to anybody who had a whiff of "bad guy." If we could have passed a national bedtime, the right would have done it to crack down on sketchy night owls.

Alito isn’t inventing a whole new right like he did in Hobby Lobby, or like Justice Anthony Kennedy did in Citizen’s United in striking down a century's worth of court precedent. He’s operating within the envelope the authors of the legislation intended.

It’s a judgment call. We pay judges to make those. So it matters who sits on the bench.

How’s Merrick Garland looking now, True Progressives? If a few Jill Stein voters and nihilistic liberal Trump voters flipped in 2016, Hillary Clinton would have filled the swing vote on the court. The ruling would have gone 5-4 the other way. 

Instead, Brett "Shotgun" Kavanaugh is now the swing voter. So Green Card holders can be incarcerated without bail for as long as the system wishes.

It matters who writes the laws, see, so we have these things called elections. Sometimes voters don't show up and the other side gets to write laws like this one.  

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was approved by Congress, including 27 Democrats in the Senate and 88 in the House, and signed by President Bill Clinton.

Clinton represented a new kind of Democrat, who would crack down and demand responsibility. That’s why we got this law and the Personal Responsibility and Economic Opportunity Act ("welfare reform"). 

Note the term “responsibility” in laws crafted to affect black and brown people.

A time for choosing

And that brings us back to the 2020 election.

Liberals in 2019 are heading into a presidential primary season pissed off for the same reason conservatives were pissed off in 1979. Their sense of right and wrong has been ignored by their party, and like conservatives in the last year of the '70s facing Jimmy Carter's sagging poll numbers, liberals now see opportunity when looking at a vulnerable sitting president. So why compromise?

They believe they’ve been sold out by party leadership for political expediency. They are sick of hearing, like conservatives before them, that their values can’t be sold to a broad electorate when polls show public opinion is ballsier than the scaredy-cat political leaders.

For 40 years, the pendulum has been swinging one way, just like it did for the decades prior to 1980 when Republicans added, rather than cut, social programs as not to be seen as too harsh. The right started swinging it back and decades later we have income inequality, mass incarceration and calcified white entitlement that goes batshit when threatened by the presence of immigrants who look like Mony Preap or Karina Ruiz.

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Now a new generation of liberals is assuming positions of power and seem eager to charge the enemy lines with swords held high, grab that pendulum and shove it back the other way.

Look at that. We have a fair fight and a symmetrical political spectrum. Freedom Caucus, meet the True Progressives.

Distinctions and differences

With huevos come risks and the risks don't fall on the heads of the establishment. Folks like Preap are the ones who live with the risk. How far are progressives willing to go in exorcising Democratic swishy-washiness and how will that effect the people said progressives purports to represent? Will they be happy giving the pendulum a good shove or will they only respond to a promise to pin it back fully leftward?

The 2020 Democratic field is rushing to affirm Twitter's exhortations of absolute liberalism on a number issues like the Green New Deal, Medicare for All and reparations to African Americans over slavery. That’s fine insomuch as it’s part of the primary process. Maybe we should have a debate about each of these. Is it all or nothing?

There’s a chance – just saying, not saying – U.S. Sen. Bernie Sanders may not win the nomination. The nominee might say “I’m not going to hang my hat on Medicare for All, because there’s no way it will pass." Some white candidate may oppose reparations and maybe still want credit for not being an utter racist.

At that point, the progressive wing is going to have to figure out if it’s going to vote and if it’s going to work. The last time around, social media was rife with Bernie People who tried to argue there was no difference between the parties.

Preap would disagree. He would have out of jail a free man if in 2016, .05 percent of the 135 million voters had flipped their votes. President (Hillary Clinton) would have appointed the decisive vote to the Supreme Court.

According to the Pew Center for People and the Press, 8 million liberals voted for Donald Trump and 2 million conservatives voted for Hillary Clinton. A University of Massachusetts study found Bernie-Trump voters decided the election. Then on top of that, there were Green Party candidate Jill Stein's 119,879 voters casting ballots in Pennsylvania, Michigan and Wisconsin, which right there cost Clinton the election.

Democrats should be less worried about moving so far to the left that they will lose the middle of the country than what the Left will do if the party nominates a center-left candidate.

The base is pissed off because they’ve been ignored for 30 years and aren’t going to take it anymore. We get it. But they've just handed Donald Trump a Supreme Court to pave the way for Trumpism. Are they really saying there's no difference between a soft Democrat and a total Donald?

The Left will have to ask themselves if Preap thinks there’s a difference between being in jail and not being in jail. They’ll have to ask themselves if the Honduran refugee who had the U.S. government steal their kid think there's no difference now between having their kid back and not having their child. They’ll have to decide if candidates who don’t support the Green New Deal as written are equal to candidates who have said climate change is a Chinese hoax.

How far will they demand to push that pendulum?

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Polls show pretty consistently that Democrats stay on the right side of public opinion and score incremental to good-sized victories on expanding Obamacare, attacking climate change, narrowing the wealth gap, legalizing marijuana, ending mass incarceration for non-violent offenders, and comprehensive immigration reform that provides a path to legal status for undocumented migrants.

That's a Mount Rushmore presidency but will it be enough?

True progressives need to up their game if they want specific and unquestioned support of Medicare for All and the Green New Deal to be political winners.

Meanwhile, back in Arizona, 200,000 legal migrants who are a joint away from facing years of incarceration without bail eagerly await the answer.

The answer is ...

The 2020 presidential campaign on the Democratic side will be a comeuppance for party leaders groveling to the right for so long. The Illegal Immigration Reform and Illegal Immigrant Responsibility Act of 1996 is Exhibit A in the case against that moderation.

On the other hand, Clinton didn't come up in a vacuum. True liberals like Hubert Humphrey, George McGovern, Walter Mondale and Mike Dukakis got beat in the years heading up to Bubba's campaign. Democrats banked to the center out of desperation.

Times have changed, though, and that liberals are standing up and that can be a very, very good thing for Democrats.

The fiery base helped turn out 60 million votes in the 2018 midterm, which is nearly twice what they did when being ignored during 2014 midterms. So there's no reason Dems can't get to 70 million next November and send Trump packing (after a temper tantrum like a president has never thrown before). Then again, if the progressive wing isn't given total control, they might find other things to do on Election Day.

The base, led by the likes of U.S. Rep. Alexandria Ocasio-Cortez, has done something big already. They are redefining the middle back to the actual middle by moving the Left back to the left. So a Democrat can push climate change measures that don't include a universal jobs guarantee and seem moderate. Hell even AOC is saying the progressive agenda is going to get done in increments. Does the Twitter vote get that?

They could see a three-quarter-loaf candidate like Amy Klobuchar or Kamala Harris as no loaf at all. Then they'll vote Green again because a Biden is no better than a Beto.

Talk at the corner organic coffee shop may dismiss the difference between Merrick Garland-esque Supreme Court justice on the bench versus a Kavanaugh. Those on the business end of policy don't see it that way.

To them it's binary. You are either in jail or you are not. You have your kid back or you don’t. It’s a binary state. There’s a difference. Will the Democratic base see it that difference if they fail to get the perfect?

Millions like Preap await their answer.

Blake Morlock is an award-winning columnist who worked in daily journalism for nearly 20 years and is a former communications director for the Pima County Democratic Party. Now he’s telling you things the Devil won’t.


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The U.S. Supreme Court upheld a get-tough immigration law. In that, justices helped frame the coming election.

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