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March 26, 2018

Dean Johnson Files Amici Brief in Ninth Circuit DACA Rescission Appeal

Several immigration law professors, including Dean Kevin R. Johnson, filed an amici curiae brief, in the U.S. Court of Appeals for Ninth Circuit appeal by the Trump administration of a district court injunction barring the rescission of the Deferred Action for Childhood Arrivals policy. 

The amici, in alphabetical order included:

The Ninth Circuit will hear oral arguments in the case in May. Steptoe Johnson LLP was counsel for the professors and filed the brief.

March 26, 2018

Digital Realty Trust, Inc. v. Somers: Bad News for Employers, Lawyers and Internal Compliance

by Dennis J. Ventry, Jr.

[Cross-posted from JURIST]

In Digital Realty Trust Inc. v. Somers, the U.S. Supreme Court voted 9-0 to narrow the definition of "whistleblower" under the Dodd-Frank Act of 2010. In particular, the Court ruled that whistleblowers are only protected against retaliation from employers under Dodd-Frank if they report allegations of an employer's securities law violations to the Securities and Exchange Commission (SEC or Commission). Alternatively, whistleblowers who report alleged violations through an employer's internal compliance program without also reporting to the SEC, like Mr. Somers, cannot avail themselves of Dodd-Frank's protections against retaliation.

To date, commentary on the Court's decision has focused on (i) how it will reduce both the absolute number of whistleblowers (by removing the assurance of legal protections against retaliation ) and the percentage of whistleblowers protected against employer retaliation (because the vast majority of whistleblowers report wrongdoing internally before, if ever, reporting to the SEC ); (ii) how the Court refused to defer to the SEC's rulemaking authority pursuant to which it had defined "whistleblower" differently for persons seeking a monetary award under the Dodd-Frank whistleblower statute (which expressly requires reporting to the Commission) versus seeking protection from employer retaliation under the statute (which does not expressly require such reporting) ; and (iii) how the Court summarily declared the statute unambiguousness in a short, two-sentence paragraph.

While these implications of the Court's ruling in Digital Realty Trust deserve highlighting, this blog post explores two unexamined, though no less important, aspects of the Court's ruling. First, while the decision was a win for the employer-defendant in this particular case, it will negatively affect employers more generally and undercut companies' internal compliance programs. Second, the ruling unequivocally harms employee whistleblowers who are obligated by law to report legal violations of employers internally before reporting outside the organization. Chief among these employees are lawyers, duty-bound to report legal violations up the ladder before, if ever, reporting to outside authorities.

Harms Employers and Legal Compliance Programs

The SEC and the companies it regulates have long expressed support for robust internal compliance programs to which employees can report suspected securities law violations.

From the SEC's perspective, deputizing regulated companies to police internal misconduct and promote internal reporting makes eminent sense. Internal reporting, the government argued in Digital Realty Trust, "enables the private sector to screen out meritless claims, and thereby improves the quality of whistleblower tips later brought to the Commission"; it "gives business the opportunity to self-correct without the need for intrusive Commission investigations"; and it "promotes efficient use of both corporate and government resources." The SEC felt so strongly about the benefits of internal reporting that its regulations provided larger awards for whistleblowers who utilize internal compliance procedures, and smaller awards for whistleblowers who interfere with those procedures.

Companies, too, have a vested interest in employees reporting internally before reporting to the Commission. Internal reporting allows employers to (i) remedy improper conduct at an early stage, perhaps before it rises to the level of a violation; (ii) self-report actual violations to the SEC, which can result in leniency in subsequent enforcement actions; (iii) gather sufficient information of the alleged violation in the eventuality of an enforcement action; (iv) promote and reinforce a culture of compliance within organizations; and (v) highlight the significant value that whistleblowers can add to organizations.

As Congress crafted Dodd-Frank and as the SEC drafted regulations to effectuate Congressional intent, support for internal compliance regimes reached a fever pitch. In part, support among regulated entities reflected concern that Dodd-Frank's financial incentives to report wrongdoing would motivate employees to bypass internal reporting channels and go directly to the SEC. Whether motivated by fear of employees reporting out suspected securities-law violations without first alerting the company or a genuine desire to bolster the effectiveness of internal compliance programs, companies rallied around Dodd-Frank's protections against retaliation.

In fact, regulated entities and their representatives urged Congress and the SEC to reinforce internal reporting by providing explicit comfort to whistleblowers that the law would protect them from retaliation. "We recognize the valid concern that some employees will fear retaliation for blowing the whistle," the Association of Corporate Counsel told the SEC. "The solution to that problem is not, however, a scheme to undermine important and effective internal compliance and reporting systems; rather, employees who fear retaliation may rely on the anti-retaliation provision contemporaneously enacted by Congress."

Companies backed internal reporting to such an extent - and Dodd-Frank's complementary anti-retaliation protections - that they pressed Congress and the SEC to make internal reporting mandatory before an employee could report to the Commission. "An internal reporting requirement is unlikely to have a negative effect on the proposed rules," a prominent law firm wrote on behalf of its corporate clients, "as companies would be given a more immediate opportunity to cure or mitigate potential violations and the whistleblower would remain protected by the anti-retaliation provisions in the Dodd-Frank Act."

Ultimately, Congress and the SEC decided not to make internal reporting mandatory. But they included robust protections against retaliation in the Dodd-Frank whistleblower statute.

Or so they thought. The Court's ruling in Digital Realty Trust delivered a blow to internal reporting and internal compliance programs. Its decision that Dodd-Frank whistleblowers must report out allegations of securities-law violations to the SEC to be covered by the statute's anti-retaliation provisions will result in untold numbers of whistleblowers bypassing internal reporting systems and going straight to the Commission.

From the government's perspective, less internal reporting will reduce voluntary compliance and require more enforcement actions. It will also result in over-reporting of alleged violations to the SEC, including a surge in meritless claims that were previously screened out by internal compliance systems. In turn, over-reporting to the SEC will squander precious government resources.

Companies regulated by the SEC are harmed even more directly by the Court's ruling. Indeed, the decision will render companies' internal compliance programs ineffective, undermine the demonstrative benefits of self-policing, increase the number of resource-intensive and intrusive government investigations, and expose employers to rising costs and liability due to undetected securities-law violations.

Harms Employees Duty-Bound to Report Internally

Employees report misconduct through their employers' internal compliance programs for various reasons. Many employees act out of loyalty and want to give their employer an opportunity to vigorously investigate, root out, and remedy the perceived legal violation. Some of these employees are either unaware of or unmotivated by potential financial rewards for reporting legal violations outside their organization. Other employees are required to report internally under their company's code of conduct. And still others are duty-bound to report internally by law and professional ethics.

In the context of U.S. securities law, this last category of employees--those obligated to report legal violations up the corporate ladder--is expansive. Lawyers representing public companies, for example, must report up evidence of a material violation of federal or state securities law or a material breach of fiduciary duty ; registered public accounting firms and their employees must report illegal acts discovered during audits to the audited public company's management ; a mutual fund's chief compliance officer must report material compliance matters to fund's board ; a broker-dealer's auditor must report material inadequacies to the broker-dealer's chief financial officer ; and investment advisers must adopt code of ethics requiring supervised persons to report violations to the chief compliance officer.

The Court's ruling in Digital Realty Trust harms all of these professionals. Specifically, it prohibits them from invoking the anti-retaliation provisions contained in Dodd-Frank in the event they are retaliated against for reporting legal violations internally but before they have a chance to report the violations to the SEC.

For lawyers, the harm is conspicuous and significant. Under the Sarbanes-Oxley Act of 2002 [PDF], lawyers are not just obligated to report certain legal violations up the corporate ladder. They are also required, in the event they receive an inadequate and untimely response from higher-ups, to report to the company's audit committee, an independent committee of the board of directors, or the board itself. Such exhaustive internal reporting takes time. Indeed, plenty of time to be fired for reporting--and continuing to report - the perceived illegal conduct. Worse, studies indicate that retaliation against whistleblowers occurs quickly, typically immediately after whistleblowers report internally.

Meanwhile, lawyers must wait for their clients to respond. And wait. And sometimes wait some more. Even then, their options are limited. Under Sarbanes-Oxley, lawyers can report out evidence of an employer's legal violation only after exhausting all reporting up obligations and, furthermore, only in the event the lawyer reasonably believes necessary to prevent or rectify substantial injury to the employer or investors. Moreover, ethics rules for lawyers in a majority of states provide similar procedures and requirements before a lawyer can disclose a client's legal violation.

In addition, the ethics rules in a minority of jurisdictions further restrict lawyers' reporting out options. In fact, some jurisdictions prohibit lawyers from reporting out financial crimes or non-criminal frauds, leaving lawyers the sole option of withdrawing from the representation. And while there is a good argument (indeed, from the perspective of this commentator, a winning argument) that the rules for attorneys promulgated under Sarbanes-Oxley preempt state ethics rules, that still-unsettled question might offer inadequate assurance for lawyers wishing to blow the whistle on a client's illegal acts by reporting to the SEC.

In the end, the decision in Digital Realty Trust harms lawyers for fulfilling their legal and ethical obligations. By removing statutory remedial protections against retaliation for reporting legal violations internally, it exposes lawyers to retaliatory acts without legal recourse. It thereby undermines Congress's mandate in Sarbanes-Oxley that lawyers report up "evidence of a material violation of securities law or breach of fiduciary duty or similar violation." And it undermines the Dodd-Frank whistleblower statute, which, by way of SEC rulemaking authority, explicitly incorporates Congress's mandate that lawyers report up certain legal violations.

Dennis J. Ventry, Jr., is a Professor of Law at the UC Davis School of Law. His research and academic specialties include tax policy, tax practice, tax filing and administration, legal and professional ethics, whistleblower law, family taxation, and U.S. economic and legal history. Professor Ventry also serves as the chairman for the Internal Revenue Service Advisory Council (IRSAC).

March 13, 2018

Elite hypocrisy about working class white and rural folks? The case of the West Virginia teachers strike

I've been keeping an eye on elite bashing of working class and rural whites for years now, and I published my first article about it as long ago as 2011.  But the election of 2016 brought the disdainful badmouthing by the chattering classes to a fever pitch, and I've occasionally blogged about the phenomenon, including here and here.  

 

One "series" I see on Twitter begins:  "And in today's episode of:  I Bet I Know Who You Voted For..." That is the common  preface to re-Tweets of headlines that could previously have appeared in the "Darwin Awards" or perhaps the petty crime pages of a local paper.  I'm pasting one below.  It re-Tweets a Fox News Tweet that reads "Substitute allegedly brought boxed wine to school, vomited in class."

 

Another re-Tweets this Fox News Tweet:  "Woman charged with choking teen for blocking view at Disney fireworks show."

 

On a related note, here's an item from Instagram just a few days ago, from the account called guerrillafeminism that reads "happy international women's day except the 53% of white women who voted for trump."

 

Pat Bagley, the cartoonist for the Salt Lake City Tribune (whose work I greatly admire, by the way--both cartoonist and paper), has referred to Trump's "idiot followers."  I could provide many more illustrations of this phenomenon.  

 

With that background, you can imagine my surprise--but also delight--when I saw this Tweet from Neera Tanden, President of the Center for American Progress, which bills itself as an

independent nonpartisan policy institute that is dedicated to improving the lives of all Americans, through bold, progressive ideas, as well as strong leadership and concerted action. Our aim is not just to change the conversation, but to change the country.

Despite the "nonpartisan" billing, I see Center for American Progress as clearly left leaning (a good thing in my book!).  Tanden's Tweet reads:

The teachers of West Virginia are heroes.  They deserve good pay and a real raise.  I stand with them. 

 

Now, I don't recall any past Tweets by Tanden blasting Trump supporters, though I do recall some highly critical of Trump.  That's fine by me.  It's a line I've drawn myself--at least in the last year or so (I was a bit less discriminating--a bit more knee jerk--as I reeled in the wake of election of 2016, and I sent off some angry, pejorative Tweets about Trump supporters as a monolithic group).  I now readily take aim at Trump but try to be more thoughtful and circumspect re: Trump supporters.  I'm looking to understand them, trying to listen empathically. (I've got a whole law review article forthcoming about female Trump supporters, delivered as the key note address at the Toledo Law Review symposium in October, 2017,  The Women Feminism Forgot:  Rural and Working Class White Women in the Era of Trump.  I hope to have the text posted soon on my ssrn.com page).

 

But the bottom line is that some things I saw on Twitter about the West Virginia teachers--many sympathetic comments of the sort Tanden shared--had me wondering if the lefties doing this Tweeting realized that many of the folks they were lauding and advocating for had no doubt voted for Trump.  That is, these newfound labor heroes with their wild-cat strike were one and the same with (many) reviled Trump voters.  Some 68% of West Virginians voted for Trump!  Could I possibly be seeing praise for these women--praise from the left?   These are the same women that many lefties on Twitter have said "get what they deserve" if they lose their healthcare (thanks to Trump's effort to dismantle Obamacare) or face further economic decline (thanks, for example, to the long-term consequences of Trump's tax reform law).

 

(Btw, I was at an Appalachian Justice symposium at West Virginia University College of Law in Morgantown from Thursday Feb. 22 'til Saturday Feb. 24th, and I got to see the teachers picketing--and hear the honking in support--first-hand, which was pretty cool.  One of my favorite signs, this published in the Washington Post, is here) 

 

Michelle Goldberg, a relatively new columnist at the New York Times who is writing a lot about gender issues, offered up this column under the headline, "The Teachers Revolt in West Virginia."  She called the strike "thrilling," noting that strikes by teachers are unlawful in West Virginia, which became a right-to-work state a few years ago, and where unions do not have collective bargaining rights. Yet, Goldberg writes,

teachers and some other school employees in all of the state’s 55 counties are refusing to return to work until lawmakers give them a 5 percent raise, and commit to addressing their rapidly rising health insurance premiums.

Goldberg further explains that the "obvious impetus" for action is West Virginia's awful pay of teachers, which ranks 48th in the nation (read more analysis here).  She also discusses the critical role that health care/health insurance plays in the labor dispute:

 In the past, solid health care benefits helped make up for low wages, but because West Virginia hasn’t been putting enough money into the state agency that insures public employees, premiums and co-payments have been increasing significantly.  

Ah, there's that health care problem again, by which I mean you should read this and this, among other sources cited and discussed in that forthcoming Toledo Law Review article. 

 

Having pored over many, many mainstream media reports of white working class Trump supporters in places like Appalachia (you guessed it, all discussed in that Toledo Law Review article!), I was struck that the women Goldberg identified and interviewed did not appear to be Trump supporters.  Quite to the contrary, these women are held out as having responded to Trump's election by becoming part of what is popularly known as "the resistance." I was delighted to learn about and hear from these women, but was Goldberg unable to find any Trump supporters among the striking teachers?  I would very much have liked to have heard their attitudes about the strike, also in relation to their support for Trump.  Did they reconcile the two?

 

Here are excerpts/quotes about the two women Goldberg did feature, Jenny Craig, a special education teacher from Triadelphia (population 811, northern panhandle) and Amanda Howard Garvin, an elementary art teacher in Morgantown (third largest city in the state, home of WVU):

Craig described the anti-Trump Women’s March, as well as the explosion of local political organizing that followed it, as a “catalyst” for at least some striking teachers.

Goldberg quotes Craig:  

You have women now taking leadership roles in unionizing, in standing up, in leading initiatives for fairness and equality and justice for everyone.

Goldberg also quotes Garvin:

As a profession, we’re largely made up of women. ... There are a bunch of men sitting in an office right now telling us that we don’t deserve anything better. 

Oh how I LOVE that quote, not least because it evinces a feminist consciousness.  In the wake of Trump’s election, Garvin added, women are standing up to say: 

No. We’re equal here.

I sure hope Garvin is right that the sentiment and movement are as widespread as she suggests--and as Goldberg implies.  If this is accurate, liberal elites--including feminists--will have to give Craig, Garvin and so many more like them their due.  (Indeed, teacher strikes may be in the works in the equally "red" states of Oklahoma and Kentucky, too).  That will challenge deeply entrenched stereotypes about folks from this region (read more here and here), which will in turn serve all of us quite well.  

 

By the way, the strike succeeded, with the teachers getting what they held out for.  You can find more exciting coverage of the West Virginia teachers strike herehere and here.  And don't miss this by WVU Law Professor and education law expert, Joshua Weishart.  

 

The question that all of this leaves me with is this:  What can the WV teachers strike teach us about how to build and sustain cross-class coalitions, including among whites?  How can these intra-racial coalitions interface with cross-race coalitions for even stronger pacts among progressives? And what role will gender play in that coalition building?  

 

Other hopeful news of change in relation to women and the national political landscape is herehere and here.  

 

March 9, 2018

The Customary International Law of Jurisdiction in the Restatement (Fourth) of Foreign Relations Law

by William S. Dodge

[Cross-posted from Opinio Juris.)

In a recent post, Dean Austen Parrish took issue with some statements about the customary international law governing jurisdiction in the Restatement (Fourth) of Foreign Relations Law. The occasion for his comments was United States v. Microsoft, a case currently pending before the U.S. Supreme Court in which Dean Parrish has filed an amicus brief. I have given my thoughts on the case and on the amicus brief elsewhere and will not repeat them here. In this post, I seek to correct a few misimpressions about the Restatement (Fourth) and the customary international law governing jurisdiction.

First, it may be helpful to sketch briefly the process for producing the Restatement (Fourth). In 2012, the Council of the American Law Institute (ALI) authorized three projects—on treaties, jurisdiction, and state immunity—under the umbrella of the Restatement (Fourth). A team of reporters was assigned to each project. I was made a co-reporter for the jurisdiction project, along with Anthea Roberts and Paul Stephan.

The ALI process begins with a Preliminary Draft prepared by the reporters, which is discussed at a meeting with the project’s counselors, advisers, and members consultative group. Based on this feedback, the reporters prepare a Council Draft, which is discussed at a meeting of the ALI Council. Based on this further feedback, the reporters prepare a Tentative Draft for discussion with the ALI membership at its annual meeting. For the jurisdiction project, three tentative drafts, covering different topics, were approved by the membership and now represent the ALI’s official position. The reporters are currently in the process of combining all the tentative drafts for the three projects together into one volume, which (as indicated below) has resulted in renumbering many of the provisions. Final publication of the Restatement (Fourth) is expected later this year.

On questions of customary international law, the Restatement (Fourth) was blessed with a great deal of expertise from U.S. and foreign lawyers and scholars. Our counselors included three former Legal Advisers of the U.S. State Department, one former Legal Adviser to the U.K. Foreign and Commonwealth Office, and one Judge of the International Court of Justice. Our advisers included designated representatives from the State Department Legal Adviser’s Office. We also had the benefit of a separate international advisory panel of academics and lawyers from outside the United States. A full list of the counselors, advisers, foreign advisers, and members consultative group for the Restatement (Fourth) is here. Not all of these people will agree with every statement in the Restatement (Fourth). The point is that every question of customary international law addressed in the Restatement (Fourth) was vetted with a broad group of U.S. and foreign experts, and the statements about the customary international law of jurisdiction in the Restatement (Fourth) represent the best judgment of the ALI as to what that law is today.

The first misimpression to correct is Dean Parrish’s statement that “the Fourth Restatement does not purport to set out international law.” Quite the opposite is true. Sections 407-413 of the Restatement (Fourth) (Section 211-217 in Jurisdiction Tentative Draft No. 2) restate the customary international law governing jurisdiction to prescribe. Section 432 of the Restatement (Fourth) (Section 402 in Jurisdiction Tentative Draft No. 3) restates the customary international law governing jurisdiction to enforce. The Restatement (Fourth) does not have a corresponding section restating the customary international law on jurisdiction to adjudicate because, as the Introductory Note to Chapter 2 (Introductory Note, Part III, in Jurisdiction Tentative Draft No. 2) observes, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (The Restatement (Fourth) does have a chapter on state immunity, although its focus is U.S. domestic law under the Foreign Sovereign Immunities Act rather than customary international law.)

With respect to jurisdiction to prescribe, Section 407 states the basic rule: “Customary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” Sections 408-413 set forth the most common bases establishing a genuine connection: territory, effects, active personality, passive personality, protection, and universal jurisdiction. These sections discuss foreign practice at length, citing the practice of more than 50 other countries. The specific bases for prescriptive jurisdiction set forth in the Restatement (Fourth) are largely the same as those found in Sections 402 and 404 of the Restatement (Third).

The Restatement (Fourth) does not continue the position of Restatement (Third) Section 403, which stated that customary international law requires an assessment of the reasonableness of exercising prescriptive jurisdiction in each case. As the reporters’ notes to Section 407 of the Restatement (Fourth) explain, “state practice does not support a requirement of case-by-case balancing to establish reasonableness as a matter of international law.” The Restatement (Fourth) does contain a provision on “Reasonableness in Interpretation”—Section 405 in the Restatement (Fourth) (Section 204 in Jurisdiction Tentative Draft No. 3). This is a domestic principle of statutory interpretation, like the presumption against extraterritoriality and the Charming Betsy canon, under which U.S. courts may “interpret[] a statute to include other comity limitations if doing so is consistent with the text, history, and purpose of the provision.”

With respect to jurisdiction to enforce, Section 432 states the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law . . . a state may not exercise jurisdiction to enforce in the territory of another state without the consent of the other state.” To apply this rule, of course, one must determine where enforcement occurs in various situations. When a U.S. court requires a person in the United States to produce information located abroad, as in the Microsoft case for example, does the enforcement occur in the United States or abroad? As the reporters’ notes to Section 431 (dealing with U.S. practice with respect to jurisdiction to enforce) explains, U.S. court orders to produce information located abroad “have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce.” In the Microsoft case, the fact that none of the foreign governments filing amicus briefs—including Ireland—has characterized the warrant in question as an extraterritorial exercise of jurisdiction to enforce seems conclusive.

Dean Parrish directs most of his criticism at the Restatement (Fourth)’s statement that, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Dean Parrish’s says this is inconsistent with the Restatement (Third), but in fact the Restatement (Third)’s position was more ambiguous than is commonly appreciated. Its Introductory Note for the chapter on jurisdiction to adjudicate, the Restatement (Third) admitted “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” It characterized the provisions that followed as “international rules and guidelines.” The substance of Section 421 strongly resembled the U.S. domestic law of personal jurisdiction as of 1986, and the reporters’ notes relied heavily on U.S. practice with some reference to U.K. law and the Brussels Regulation. There was no analysis of opinio juris—whether any of the practice was followed out of a sense of international legal obligation.

An honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity. Some bases for adjudicative jurisdiction are certainly considered exorbitant—tag jurisdiction in the United States or jurisdiction based on the nationality of the plaintiff in France, for examples—but these bases are not considered to violate customary international law. The clearest evidence of this is the Brussels I Regulation (Recast) in the European Union, which prohibits the use of exorbitant bases against defendants from other EU member states, but expressly permits the use of exorbitant bases against defendants from non-EU member states and requires EU member states to enforce judgments against such defendants resting on such bases. If states do not refrain from exercising jurisdiction on exorbitant bases of jurisdiction out of a sense of legal obligation, there can be no rule of customary international law prohibiting their use.

The Restatement (Fourth) of Foreign Relations Law also discusses many rules of U.S. domestic law addressing different aspects of jurisdiction, including the presumption against extraterritoriality, personal jurisdiction, forum non conveniens, the act of state doctrine, the doctrine of foreign state compulsion, and the recognition of foreign judgments. (For an overview written for a private international law audience, see here.) The Restatement (Fourth) also tries to distinguish clearly between rules of domestic law and rules of customary international law, and to state rules of customary international law only when they are supported by state practice and opinio juris. But Restatement (Fourth) does address the customary international law of jurisdiction, and it draws on a deep well of expertise in doing so.

 

March 5, 2018

Court Tees up Issue of the Constitutionality of Indefinite Immigration Detention for the 9th Circuit

[Cross-posted from SCOTUS Blog]

On February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a class-action challenge to provisions of the immigration laws allowing for immigrant detention. After hearing oral argument in the case last term, the court asked for further briefing on the constitutionality of the detention of immigrants. At the end of the term, still shorthanded after Justice Antonin Scalia’s death the previous year, the court ordered reargument. With President Donald Trump’s administration promising to increase the use of detention as a form of immigration enforcement, the case has great practical significance.

As discussed in my preview of the argument, two Supreme Court cases decided at the dawn of the new millennium offer contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim refused to disturb a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that, in the words of the appeals court, avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees.

I noted in my argument analysis that during the reargument, some justices worried that the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. Such concerns carried the day.

Justice Samuel Alito wrote for a 5-3 court. (Justice Elena Kagan recused herself, in all likelihood because she was involved in the case while serving as U.S. solicitor general.) Using a textual approach to interpreting the immigration statute, the majority found that nothing in the statute supports the imposition of periodic bond hearings as mandated by the court of appeals. The court held that, because the statute was clear, the 9th Circuit had misapplied the doctrine of constitutional avoidance. Alito emphasized that “a court relying on that canon … must interpret the statute, not rewrite it.”

In Part II of the opinion, not joined by Justices Clarence Thomas and Neil Gorsuch, a plurality of the court found that the statute (8 U.S.C. §§ 1252(b)(9), 1226(c)) did not preclude the court from exercising jurisdiction over the case. Although not engaging in “a comprehensive interpretation” of Section 1252, the plurality suggested that it only applied to individual removal orders. Because the detention is not a part of the U.S. government’s discretionary authority, Section 1226(e), which limits review of discretionary judgments, does not apply.

The court next reiterated the doctrine of constitutional avoidance as a tool of statutory construction. Ultimately, the court found that the 9th Circuit had misapplied the canon “because its interpretations of the three provisions at issue here are implausible.” As the court emphasized, “[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.”

In Part IV, the court challenged Justice Stephen Breyer’s dissent for “ignoring the statutory language” and asserted that his interpretation of the statute was “implausible.”

In the last part of the opinion, the court remanded the case to the 9th Circuit, instructing it to address the constitutional challenges to the statute in the first instance. In so doing, it raised statutory jurisdictional questions that were not raised by the parties, questioned “whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for  respondents’ claims in light of Wal-Mart Stores, Inc. v. Dukes,” and directed the court of appeals to consider whether a class action is the appropriate tool for resolving due process clams that often are fact-specific.

Thomas, joined by Gorsuch, concurred in all but the jurisdictional part of Alito’s opinion. Thomas read the statute as preventing judicial review “except in a petition for review from a final removal order or in other circumstances not present here.” He went on to conclude that the bar on jurisdiction is constitutional.

Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, dissented, reading portions of his opinion from the bench. Breyer would have applied the doctrine of constitutional avoidance because “the majority’s interpretation of the statute would likely render the statute unconstitutional,” and he addressed the constitutional question in detail. In the course of a thorough review of the cases, Breyer observed that the Supreme Court “generally has not held that bail proceedings are unnecessary. Indeed, it almost always has suggested the contrary.” His conclusion: The decisions “tell us that an interpretation of the statute … would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution.” Breyer also read the statute as requiring “bail proceedings in instances of prolonged detention without doing violence to the statutory language or to the provisions’ basic purposes.” Finally, Breyer disputed the majority’s suggestions that the statute bars review and that the case was inappropriately brought as a class action.

In some respects, the court’s decision in Jennings v. Rodriguez takes us back to the drawing board. After sparring among themselves over two terms, the justices remanded the case to the 9th Circuit to decide a meaty constitutional question — whether indefinite detention of noncitizens without a bond hearing as authorized by the immigration statute is constitutional.