Monday, November 25, 2002

POP QUIZ (originally posted 6/29/01)

Quick -- name a recent case in which a court rewrote a statute by inverting the meanings of "may" and "shall not" and adding to the statute an artificial cut-off date that it manufactured from whole cloth. Okay, you get full credit if your answer was the SCOFFLAw's first decision in Bush v. Gore. But we were actually thinking of Zadvydas v. Davis, Nos. 99-7791 and 00-38, decided yesterday on the last day of the Supreme Court's October Term 2000. The case involved a federal statute providing that "[a]n alien ordered removed [and who meets certain conditions, such as being a risk to the community] may be detained beyond the removal period." Jusstice Breyer wrote the opinion for a 5-4 majority. He determined (presumably again applying his own secret language, see THE KING'S ENGLIGH, below) that this statute actually means that such an alien "shall NOT be detained for more than six months beyond the removal period." Little more needs to be said to show the absurdity of the Court's decision, which was apparently motivated by its newfound solicitude for criminal aliens. The Fourteenth Circuit agrees with Justice Scalia that there is no constitutional "right of release into this country by an individual who concededly has no legal right to be here." But even assuming arguendo that reasonable jurists could differ over the constitutional question, there was no justification for the Court to avoid it by rewriting the statute to suit its own political agenda.

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