The Story of Demore v. Kim: Judicial Deference to Congressional Folly
Margaret H. Taylor
Wake Forest University School of Law
IMMIGRATION LAW STORIES, David A. Martin and Peter H. Schuck, eds., Foundation Press, 2005
In Demore v. Kim, the Supreme Court rejected a due process challenge to a statute mandating detention without bond for virtually all noncitizen offenders facing deportation. Demore is the Court's most recent foray into constitutional immigration law. It is also among the most disturbing of the Court's immigration cases, because it seems to signal a shift away from greater constitutional protection of noncitizens and toward unquestioning reaffirmation of the so-called plenary power doctrine. This chapter from the forthcoming book Immigration Stories delves into the history of the challenged statute and the record of the case to develop an account that contradicts in many respects the Demore majority's analysis of the statute and its application to the respondent, Hyung Joon Kim.
The statute at issue in Demore was enacted, as the Supreme Court noted, to redress serious inadequacies in the system for removing deportable criminal offenders. Nevertheless, the sweeping detention mandate was not the product of careful deliberation, as depicted by the Demore majority, but rather was an overreaction, prompted by election year politics and inserted without study into omnibus legislation that Congress was in a hurry to pass. In addition to developing this legislative history, the chapter details the considerable costs that mandatory detention imposes on noncitizen offenders, who must relinquish their freedom as the price for contesting deportation, and on the government, which must devote scarce resources to detain individuals who do not present a risk of flight or danger to the community. It also tells of the rehabilitated life of Hyung Joon Kim, whose fight to remain in the United States continues to this day.
Finally, the chapter analyzes the majority's unconvincing explanation for upholding mandatory detention. I conclude that Demore is best understood as a post-9/11 decision, rendered at a time when a majority of the Court was reluctant to scrutinize the political branches' claimed authority to detain non-citizens who are perceived as a threat. It is the historical context of Demore, rather than the Court's analysis of precedent, that explains the outcome of the decision. This legal realist interpretation has important implications for the stability of Demore as precedent and for the future of the plenary power doctrine.
Keywords: Immigration, Detention
JEL Classification: K41Accepted Paper Series
Date posted: June 8, 2005
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