Former President Donald J. Trump and Supreme Court Justice Brett Kavanaugh pose for photos Thursday, Nov. 8, 2018, during the investiture of Justice Kavanaugh at the Supreme Court of the United States in Washington, D.C. (Official White House Photo by Shealah Craighead). Image via Flickr.
It has been five months since Supreme Court Justice Brett Kavanaugh claimed that Americans and documented individuals weren't being detained by federal agents, but a GOP-appointed U.S. District Court judge authored an opinion calling it outright wrong.
Judge Thomas E. Johnston, out of the U.S. District Court for the Southern District of West Virginia, a George W. Bush appointee, wrote in a decision, “Today, immigrants are being detained without due process. Tomorrow, under the Government’s interpretation of the law, American citizens could be subject to the same ... This Court will not allow such an unraveling of the Constitution.”
On page 28 of the ruling, Johnston added, "By the government's own admission, its position is that if an ICE officer made a mistake and, pursuant to § 1225, detained somebody who was legally in the United States, that detainee would not be entitled to a bond hearing. Instead, that detainee— who is confined to a jail cell and may not have a mastery of the English language — could only have their case heard by a neutral judicial officer if they were somehow able to file a habeas petition with a Court of Appeals or the District Court of D.C."
New Mexico civil litigator Owen Barcala commented, "In other words, the government believes that if you, a U.S. citizen, are detained for deportation, they can hold you in a dirty, overcrowded, unsafe, potentially measles-ridden cell for months until they get around to having a hearing with an immigration judge."
Judge Johnston continued in the ruling, "This concession should concern everyone. A threat to anyone’s constitutional rights is a threat to us all."
He further remarked, "'[I]t is unconstitutional for the Government to detain a person without explanation, without a hearing, without notice or without any means of challenging that detention,' which is 'exactly what the Government did' here."
In Kavanaugh's ruling, he wrote, "If the person is a U.S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter."
He claimed that stops by federal law enforcement also require reasonable suspicion of illegal presence. Other courts have found that agents are using color and language to determine "suspicion."
Such stops have become known colloquially as "The Kavanaugh Stop" as a result.