This past week, the Supreme Court released a decision on Jennings v. Rodriguez, reversing a lower court’s ruling by a 3-2 majority. Alexander Rodriguez, an illegal alien, was apprehended during a border crossing without bond hearings. Sections of theImmigration and Nationality Act require that non-citizens in the process of being deported be detained during removal proceedings, only allowing bond in specific circumstances. The U.S. Court of Appeals for the Ninth Circuit held that prolonged detention without a hearing raised serious constitutional concerns, and therefore found detainees were clearly entitled to bond hearings under statute. The appellate court also determined that the duration of detention and likelihood of eventual removal should not be considered in bond hearings, and that non-citizens are entitled to hearings at six-month intervals throughout detention regardless of its duration. Many are calling this case a “death blow to immigrant rights in the United States,” reflective of an evolving public opinion on immigration.

One of the first cases on the due process rights of immigrants was Yick Wo v. Hopkins (1886), which determined that city ordinances that are applied based on race are a violation of the Equal Protection Clause of the Fourteenth Amendment. In the Antebellum period, large numbers of freed Black slaves and Chinese immigrants were assimilating into a largely white society. Often, city ordinances were unevenly applied to Chinese immigrants and newly freed African Americans; the case clarified that laws cannot be unevenly applied based on citizenship or race.

Building upon that standard, the famous “Japanese Immigrant Case” of Yamataya v. Fisher (1904) upheld that undocumented immigrants are guaranteed due process rights in deportation hearings and specifically stated that such individuals could not be acted against without fair hearing. Sixteen year-old plaintiff Yamataya arrived in the United States several days before being detained for the possibility of being a public charge–someone who is primarily dependent on government assistance to live. This detention was based off both the passing of the Geary Act and the Immigration Act of 1882, which allowed for the exclusion and pre-detention of immigrants who were either of Chinese descent or were at risk for becoming public charges through behavior like idiocy, polygamy, etc. Legislation like this channeled the nationalist zeitgeist; the Court reflected this public opinion by ruling against Yamataya on the grounds that the appeals and deportation process were not in the purview of the Court.

One of the more recent cases on immigrant detention is Zadvydas v. Davis (2001) which questioned the Attorney General’s ability to detain a removable alien indefinitely beyond the defined 90-day removal period. The case revolved around the incarceration of Kestutis Zadvydas, an alien who was ordered to be deported based on his criminal record. When he remained in custody after the removal period expired, Zadvydas filed a writ of habeas corpus. The District Court granted the writ, reasoning that his confinement would be permanent and thus violate the Constitution. An appeals court later concluded that Zadvydas’ detention did not violate the Constitution because eventual deportation was not impossible. In a response by Justice Stephen Breyer, the Court ruled that “the statute, read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States” and “does not permit indefinite detention.” Two years later, Demore v. Kim (2003) declared that the Immigration and Navigation Act, which allowed for no-bail civil detention of aliens awaiting deportation, is not a constitutional issue. Chief Justice Rehnquist wrote that Congress, concerned that deportable criminal aliens may fail to appear for their removal hearings, does have the authority to require their detention for the period necessary for removal proceedings to occur. These decisions were written in the thick of the United States’ War on Terror, where immigration was under close legislative scrutiny after the events of September 11th.

The Court is now faced with two vital questions: whether the continuing policy of indefinite detention of immigrants creates a difficult Constitutional debate about due process and which groups are protected by Constitutional provisions. In the past, the Supreme Court has proven itself to be able to adapt to evolving national consciousness and a changing world. That said, since the 2016 election, the nation has shown itself to be more divided than ever on immigration issues.