By: Samantha F. Carmickle, Volume 103 Staff Member

In 1893, Edward Bulwer-Lytton wrote that “[t]he pen is mightier than the sword.”[1]That may be so, but more power lies with he who interprets the words than he who writes them. By using ordinary tools of statutory construction, the Supreme Court interpreted the Apprehension and Detention of Aliens Act and sealed the fate of countless aliens in the United States.[2]This Post analyzes how the majority and dissent in Nielsen v. Preap[3]reached their respective decisions and how using equity in statutory interpretation would lead to more uniform and fair statutory interpretations.

“The Attorney General shall take into custody any alien . . . when the alien is released [from criminal custody].”[4]Acting under this authority, immigration authorities took three lawful permanent residents into custody and detained them without bond hearings.[5]Each of them had previously criminal convictions which triggered the mandatory detention provision, but none were arrested immediately after release.[6]The three residents filed a class action for habeas relief in the United States District Court for the Northern District of California.[7]They argued that the mandatory detention provision of the Apprehension and Detention of Aliens Act did not apply to them since they were not arrested immediately after being released from criminal custody.[8]

On review, the Ninth Circuit held that immigration detention under § 1226(c) must take place promptly upon the alien’s release.[9]The Supreme Court, however, disagreed and held that a noncitizen does not become exempt from the mandatory detention provision due to the Department of Homeland Security’s failure to take him into immigration custody immediately following release from criminal custody.[10]  The majority utilized tools of statutory construction and found that the grammatical structure of the provision, along with the meaning of the words taken in context, required mandatory detention of all aliens who had been released from criminal custody regardless of when the release occurred.[11]The dissent, while also using tools of statutory construction, reached a very different conclusion.[12]The dissent found that the plain meaning of the statute’s language, it’s structure, and relevant canons of interpretation reveal that § 1226(c) was only meant to apply to aliens immediately following their release from criminal custody.[13]

On their faces, both the majority’s and dissent’s interpretations of the language in the Apprehension and Detention of Aliens Act seem plausible. After all, they both utilize tools of statutory construction which are just empirical claims of how people use language.[14]How then, do we end up with such vastly different views of what the language means? The majority emphasized that the “Congress enacted mandatory detention precisely out of concern that such individualized hearing could not be trusted to reveal which deportable criminal aliens . . .  might continue to engage in crime [or] fail to appear for their removal hearings.”[15]It appears, then, that in making its interpretation the majority is primarily concerned with what Congress intended. That is, after all, the primary goal of statutory interpretation.[16]That cannot account for the difference in interpretation, however, because the dissent also focuses on what Congress intended.[17]Both interpretations of the statutory language seem plausible and both purport to focus on Congressional intent, yet we end up with vastly different, life altering results.

Since using the normal rules of the English language and Congressional intent can lead to divergent results, it is time for courts to start utilizing a new tool of statutory interpretation: equity.[18]After all, the goal of the law is justice,[19]not grammatical soundness.[20]Rather than looking to the form of the law to be interpreted, courts should focus on how the interpretation will impact affected parties. Had the Court done so in Nielsen,[21]it would have reached the conclusion that the mandatory detention provision of the Apprehension and Detention of Aliens Act was only meant to apply immediately following the alien’s release from criminal custody. This is because equity—the fairness we apply to dealings with other humans—inherently suggests taking someone into custody and holding him without a bond hearing for no reason other than that he had at some time priorbeen released from criminal custody is unjust.[22]As shown by the foregoing example, by using equity as a tool of statutory interpretation, courts will reach more uniform and just results when interpreting statutes.

[1]Alison Gee, Who First Said ‘The Pen is Mightier than the Sword’?, BBC News, (Jan. 9, 2015)

[2]See generally Nielsen v. Preap, No. 16-1363, 2019 WL 1245517 (March 19, 2019).

[3]2019 WL 1245517.

[4]Apprehension and Detention of Aliens Act, 8 U.S.C. § 1226(c).

[5]Nielsen, 2019 WL 1245517, at *4.

[6]Id. In fact, some were not arrested for years. Id.



[9]Id. at *3.

[10]Id. at *1.

[11]Id. at *8.

[12]Id. at *19.


[14]Alan Z. Rozenshtein, University of Minnesota Law School Associate Professor of Law, Understanding the Text (Sept. 18, 2018). Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 140 (2010) (“Words are to be given the meaning that proper grammar and usage would assign them.”).

[15]Preap, 2019 WL 1245517, at *10 (quoting Demore v. Kim, 538 U.S. 510, 513 (2003) (internal quotations omitted).

[16]United States v. Am. Trucking Assn’ns, Inc., 310 U.S. 534, 542 (1940); See also, e.g., John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev.419, 423 (2005) (“[A] faithful agent will . . . seek the legislature’s intended meaning . . .”).

[17]Preap, 2019 WL 1245517, at *23. Rather than narrowing in on the purpose of the mandatory detention provision as the majority did, the dissent applies the “whole code rule” and looks to other statutes that “Congress enacted alongside [the Apprehension and Detention of Aliens Act].” Id. For a description of the whole code rule, see United States v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000).

[18]What is EQUITY?, The Law Dictionary(last accessed Apr. 1, 2019)“In its broadest and most general signification, [equity] denotes right dealing which would regulate the [interactions] of men with men.”).

[19]Max Radin, The Goal of Law, 1951 Wash. UL.Q. 1 (1951).

[20]This is especially true given that laws often come out looking awkward and reading poorly because they are the product of “a legislative process that has many twists and turns . . .”). Manning, supranote 15, at 445.

[21]Preap, 2019 WL 1245517.

[22]This is so, because it does not fit within any utilitarian or retributivist grounds for placing someone in criminal custody.