On Wednesday, the Supreme Court heard oral arguments for two cases: Nielsen v. Preap and Air & Liquid Systems Corp. v. DeVries.

In Nielsen, the Court will decide whether immigrants, with prior criminal convictions, are exempt from mandatory detention if the Department of Homeland Security does not immediately take them into custody after their release. Currently, 8 U.S.C. § 1226 (c) provides that, upon conviction of a broad range of crimes, a noncitizen must be placed into immigration custody without a bail hearing following their release from federal or state custody. The Washington Post explains that Mony Preap, one of the plaintiffs in this class action suit, was convicted of two counts of possession of marijuana in 2006, and he was taken into detention by several years later. Preap was held for months without a bond hearing, although he was later released.

During oral arguments, the Trump administration contended that no time limitation should be placed on the government’s ability to detain noncitizens under this statute, which is the same way the Obama Administration interpreted the statute. The American Civil Liberties Union (ACLU) represented the plaintiffs and asked the Court to affirm the U.S. Court of Appeals for the Ninth Circuit’s ruling, which found that the government must act to detain noncitizens within a reasonable degree of immediacy of their release from state custody.

The parties and justices debated the language and structure of the statute, and they also discussed Congress’s intent in passing it and the real-world implications of the proposed interpretations. The New York Times reports that Justice Breyer displayed concern about the Trump administration’s position; he repeatedly asked if an immigrant could be detained for a crime fifty years after release from custody.  According to Slate, Justice Gorsuch, could be the “swing” vote on this case, and he pressed the issue by picking up Breyer’s line of questioning and adding “Is there any limit on the government’s power?” Breyer also suggested the solution was to give detainees a bail hearing so the government could limit detentions to those who posed a risk.  Justice Kavanaugh appeared to be of the opinion that Congress neither trusted the bail system nor intended to have a time limitation for the detentions. The Atlantic notes this case has implications for thousands of immigrants.

Air & Liquid Systems Corp. involves a group of Navy sailors, led by John DeVries, who were exposed to asbestos while working with equipment in a naval shipyard. The sailors died of lung cancer caused by asbestos exposure and their survivors sued several companies, including Air & Liquid Corp., which manufactured the equipment that later had asbestos containing materials added. However, the defendants never made, sold, or distributed the equipment with asbestos insulation, which was installed by a third party.  The plaintiffs claim the defendants failed to properly warn workers of the risks of asbestos. Since the injuries occurred at sea, maritime law governs this case.

Courthouse News Service reports that Justice Sotomayor pointed out that contained asbestos is perfectly safe and stated it was the defendants’ equipment which heated up and caused the asbestos to become dangerous.  She likened the situation to a car manufacturer being liable for producing a car with a leak in its engine. Upon questioning from Justice Gorsuch, the defense argued that providing additional warnings about asbestos on the equipment could lead to “over-warning” which would dilute the message of the warnings. Check out Jurist for more information on the arguments

Links to the transcripts of these cases can be found at the following links: Nielson v. Preap and Air & Liquid Systems Corp. v. DeVries

Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.