Cross-posted, with some changes, at Letters Blogatory.
I don’t know much of anything about Ravidath Ragbir. His website says that he was a longtime lawful permanent resident from Trinidad who was convicted of fraud and then, in 2006, ordered removed from the country. For nine years, the government had not deported him, he had lived a law-abiding and fruitful life, and he regularly reported to immigration authorities. But a few weeks ago he was taken into custody. As the judge wrote in a decision yesterday on his case, “He was informed that his time in this country was at an end; without further ado, without the freedom to say goodbye, he was taken away.”
The judge agreed with the government that the statute permitted the government to detain Ragbir as it had. But she thought that the government had applied the statute to the facts of this case in an unconstitutional way. I quote her at some length even though I’ve never really liked the stilted style judges often adopt when they want to make an important constitutional point:1
There is, and ought to be in this great country, the freedom to say goodbye. That is, the freedom to hug one’s spouse and children, the freedom to organize the myriad of human affairs that collect over time. It ought not to be—and it has never before been—that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust, regimes where those who have long lived in a country may be taken without notice from streets, home, and work. And sent away. We are not that country; and woe be the day that we become that country under a fiction that laws allow it. …
In sum, the Court finds that when this country allowed petitioner to become a part of our community fabric, allowed him to build a life with and among us and to enjoy the liberties and freedom that come with that, it committed itself to allowance of an orderly departure when the time came, and it committed itself to avoidance of unnecessary cruelty when the time came.
I am not certain that the judge was right about the case as a constitutional matter. She might be, but it’s not immediately obvious to me. What is obvious is that she is responding to unusually cruel action by the government. One of the pathologies of the Trump era is the pressure on the courts to act as a relief valve against the more outrageous actions of the Executive. I wrote about this earlier: our laws give enough discretion to the Executive to allow us to say that even really terrible policy may be legal. The ultimate answer is to get a new Executive, but in the meanwhile, the Judiciary has to balance the immediate needs with the long-term interests of the law, which is mostly designed on the assumption that everyone is competent and acting in good faith.
1 Examples from this quotation: “Woe be the day that we become that country under a fiction that laws allow it.” Not a good sentence. Or how about this: “That is, the freedom to hug one’s spouse and children, the freedom to organize the myriad of human affairs that collect over time.”