Implications of the Constitutional Question Left Open in Jennings v. Rodriguez

By Katherine Kyman

On February 27, 2018, the Supreme Court issued its long-awaited decision in Jennings v. Rodriguez.[i] The case was first argued on November 30, 2016. However, in the wake of Justice Scalia’s death, the Court split 4–4.[ii] After the addition of Justice Neil Gorsuch to the Court, the case was eventually reargued on October 3, 2017. The majority opinion was authored by Justice Alito, joined in full by Chief Justice Roberts and Justice Kennedy, in all but Part II by Justice Thomas and Justice Gorsuch, and in Part III-C by Justice Sotomayor. Justice Breyer wrote a dissent, joined by Justice Ginsburg and Justice Sotomayor. Justice Kagan, after participating in both oral arguments and the original 4–4 vote, recused herself from the case upon realizing that she had been involved with the proceedings while serving as Solicitor General.[iii]

The issues in Jennings v. Rodriguez center around the Immigration and Nationality Act (INA) provisions 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), which authorize the detention of non-citizens during removal proceedings without bail hearings. These sections apply specifically to the following: persons who attempt entry without legal status seeking asylum; persons with documents who cannot prove their admissibility beyond a doubt; and persons present in the U.S. who have committed certain crimes making them removable. The Court of Appeals for the Ninth Circuit used the Supreme Court’s decision in the 2001 case Zadvydas v. Davis[iv] as support for reading an implicit six-month limit into the challenged INA provisions. Once that time period expires, the government is required to provide periodic bail hearings in order to avoid raising constitutional questions regarding indefinite detention. The Zadvydas Court read this six-month limit into 8 U.S.C. § 1231(a)(6) in an opinion authored by Justice Breyer over multiple dissents, including one by Justice Kennedy.[v]

The Supreme Court was not persuaded by the Ninth Circuit’s decision to apply Zadvydas to the issue in Jennings. The Court found that the challenged statutes in each case were fundamentally different because they involved detention during removal proceedings and not detention following an order of removal. While the Court clearly reversed the Ninth Circuit’s statutory holding, it chose not to address the question of whether the relevant provisions of the INA were constitutional. Even though it requested supplemental briefing on this constitutional question after the first oral argument, the Court remanded the case to the Ninth Circuit to address the issue. Language in Justice Alito’s majority opinion suggests that the Ninth Circuit should also consider the appropriateness of the case’s class action posture as a potential basis for dismissing it without reaching the constitutional question.

One potential and plausible explanation for the Court’s unwillingness to reach the constitutional question is that there were not five votes to uphold the constitutionality of the challenged INA provisions.[vi] Additionally, for the constitutional issue to be considered by the full Court, it would need to be raised in a case other than Jennings v. Rodriguez in order for Justice Kagan to participate. A potential vehicle is the Second Circuit’s ruling on the issue in Lora v. Shanahan,[vii] which the Court vacated and remanded for consideration in light of the Jennings decision on March 5, 2018.[viii]

In this situation, the eventual decision of the Court would likely be determined by the position of swing Justice Anthony Kennedy,[ix] provided that he has not retired when the question reaches the Court again.[x] Justice Kennedy’s jurisprudence provides some insight regarding how he might resolve the constitutional question presented by indefinite detention. Justice Kennedy dissented from the majority opinion in Zadvydas on the basis of its statutory holding and invocation of the principle of constitutional avoidance, but acknowledged that “[i]n a later case the specific circumstances of a detention may present a substantial constitutional question.”[xi] Perhaps most instructive is Justice Kennedy’s concurrence in Denmore v. Kim.[xii] In that case, the Court found no constitutional violation in allowing detention without bail hearings pending the termination of removal proceedings under 8 U.S.C. § 1226(c). In his concurrence, Justice Kennedy wrote that Due Process may require that a legal permanent resident receives an “individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.”[xiii]

While the resolution of the constitutional question posed in Jennings v. Rodriguez may remain uncertain, the practical implications of the Court’s unwillingness to reach the issue are painfully clear. As Justice Breyer notes in his dissent, the majority opinion permits the lengthy detention of a large number of non-citizens, many of whom eventually win their cases and remain in the United States.[xiv] With an average detention length of over one year for persons subject to the challenged INA provisions and an average daily ICE-detained population of over 40,000 in 2018, the Court’s postponement of deciding the constitutionality of prolonged detention without bail hearings has devastating effects for many.[xv]

[i] 538 U.S. ___ (2018).

[ii] Jennings v. Rodriguez, SCOTUSBlog, (last visited Mar. 15, 2018).

[iii] Adam Liptak, No Bail Hearings for Detained Immigrants, Supreme Court Rules, N.Y. Times (Feb. 27, 2018),

[iv] 533 U.S. 678 (2001).

[v] Id.

[vi] OT2017 #17: “Elephants Rarely Hide in Pajamas, First Mondays (Mar. 12, 2017),

[vii] Lora v. Shanahan, 804 F.3d 601 (3rd Cir. 2015).

[viii] Shanahan v. Lora, 538 U.S. No. 15-1205 (2018).

[ix] Erwin Chemerinsky, The Roberts Court at Age Three, 54 Wayne L. Rev. 947, 953 (2008).

[x] Adam Liptak, Will Anthony Kennedy Retire? What Influences a Justice’s Decision, N.Y. Times (Feb. 19, 2018),

[xi] Zadvydas v. Davis, 533 U.S. 678, 718 (2001).

[xii] 538 U.S. 510 (2003).

[xiii] Id. at 532.

[xiv] Jennings v. Rodriguez, 538 U.S. ___ (2018).

[xv] Garrett Epps, How the Supreme Court is Expanding the Immigrant Detention System, The Atlantic (Mar. 9, 2018),