"[W]hy would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years (while their withholding-only proceedings wend their way toward completion)? I can find no satisfactory answer to this question."

A seemingly perplexed Justice Stephen Breyer wrote this (and was predictably joined in bewilderment by the Court's two other liberal justices, Sotomayor and Kagan) in his June 29 dissenting opinion in Johnson v. Guzman Chavez, the recent case in which the majority found that, in layman's terms, deported aliens who re-enter the U.S. illegally are not entitled to a bond hearing while they await their current adjudication.

In this case, as Breyer notes, pending the outcome of a so-called, "withholding-only proceeding," that determines whether an alien may be permitted to remain in the U.S. because, "returning [the alien] to his or her home country ... [poses] a reasonable fear of persecution or torture."

The answer wasn't at all allusive to Justice Samuel Alito, author of the majority opinion in this case, or the six other justices. "Congress had obvious reasons to treat these two groups differently," wrote Alito.

Nor did Alito have any such difficulty satisfactorily articulating what Breyer struggled so hard to discover:

"Congress's judgment" differentiates between, "the detention of different groups of aliens who posed different risks of flight: aliens detained ... before having been ordered removed and those held ... after already having been ordered removed.  Aliens who have not been ordered removed are less likely to abscond ... [than] aliens who have already been ordered removed[.] ... In addition, aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order.

In other words, deported aliens who illegally return to the U.S. have little to lose by jumping bail and disappearing into the safety of some blue-state sanctuary city.  Furthermore, as Alito notes, "they would seem to still have a chance to get that relief (another withholding-only proceeding), if they absconded and were again apprehended."

Apparently, the Court's three liberal justices were unable or unwilling to anticipate the increased risk this type of repeat offender has of jumping bail, nor were they able to discern that Congress would intend not to risk it.

It might seem unthinkable to Breyer, Sotomayor, and Kagan that Congress would resort to such draconian tactics in dealing with such repeat offenders, some of them violent criminals, as to dash hopes of becoming free on bail while awaiting the outcome of their withholding-only proceeding.

For most of the rest of Americans, it would be unthinkable if Congress had not.

Image via the White House.

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