The U.S. Supreme Court ruling in Jennings v. Rodriguez on Tuesday is a bizarre and dark new development in the American experiment. Not only because it’s a breakdown of the court’s ability to properly interpret the constitution (as they formally institutionalize a de facto second class of citizens), but because it’s a dereliction of the court’s duty as a part of a system of checks and balances designed to protect the constitutional rights of people in this country, regardless of country of origin, from a tyrannical government that would subvert our founding document for political or racist ends.
This ruling only formalizes what many of us in the Latinx community have known for generations: that the perpetuation of systems and laws that instill fear in immigrants (detained or not) is a form of state-sponsored terror. Now the court is complicit and part of that terror. And as pathways to legal status for immigrants come under attack by the current administration, this kind of terror is increasingly designed to incarcerate people for no other reason than for their inability to access pathways toward legal status — which is how this ruling will likely be used by this current administration.
The court ruled in Jennings v. Rodriguez that all immigrants, even those with protected legal status or asylum seekers, do not have a right to periodic bond hearing after detention, which makes it possible for them to be detained indefinitely. The defendant, Alejandro Rodriguez, who was brought to the United States from Mexico as an infant and became a permanent legal resident, was detained for three years for joy riding and possession of a controlled substance; the ACLU was fighting for his right to a hearing.
It comes a day after another Supreme Court decision not to rule on the Obama-era Deferred Action for Childhood Arrivals program, which in effect leaves that program safe for at least another year. But while the ruling on DACA might give the impression of an impartial system of courts, the latter development undermines that illusion by giving this discriminatory Trump administration its seal of approval in the name of the law.
All three branches are now in sync with their consensus to terrorize detained immigrants, documented and undocumented alike. And the explicit message of this ruling against Rodriguez is that, no matter your legal status, the constitution does not work for you if you’re an immigrant. You can be extracted from the American fabric for seemingly arbitrary reasons, by virtue of that now-institutionalized second class status.
What we’ve seen is the majority of this court, our last branch of un-bought government, actively buying out of the idea of America as a melting pot, as a nation of immigrants who deserve certain unalienable rights, not unlike life, liberty and the pursuit of happiness.
This should be a wake-up call to anyone who thought (maybe still thinks) that they have nothing to fear because they are documented, or that they have nothing to fear because they’re not Latinx, or that they have nothing to fear because they are another type of immigrant, or they have nothing to fear because they’ve done nothing wrong. The ruling makes it possible to target, criminalize and then indefinitely detain someone for no other offense than being systematically denied a pathway toward legal status in the first place — or even if they did.
If we’ve learned anything from the #BlackLivesMatter movement, it’s that this country has ways of creating probable cause when it seeks to dispose of you. And in a country that incarcerates more if its population — by number and percentage — than any other place in the world and in era where private prisons are in rapid expansion, it’s reasonable to ask whether if immigrants are the target today,who else might be tomorrow.
In the context of the historical terrorization of the Latinx community (and not just the Latinx immigrant community) through workplace documentation audits, workplace raids, deportation proceedings and traffic stops, it’s hard to see this ruling as anything but unhinged new turn that will have a chilling effect on public dissent among America’s immigrant and Latinx population, effectively undermining the first amendment of the constitution — free speech (which seems oddly appropriate for the post-truth era).
We have to be vigilant about dismantling our immigrant class — already consigned to second-class status — while maintaining the rights of those who have been legally condemned to that class. Under this administration, it’s not a given that citizens won’t fall prey to these same systems being put into place to remove from America the people some conservatives have declared racially undesirable, especially now that all three branches of our government are in-step and moving toward a common fate.
Daniel Peña is the author of "Bang: A Novel." He lives in Houston, Texas.