The Corrupt Supreme Court Strikes Again

The Supreme Court took 6 months to decide immunity, but just 6 days to effectively strip the rest of us of due process.

I know, I know - I sound like I’m being overly dramatic given the Supreme Court did just tell the Trump administration they can’t deport people under the Alien Enemies Act proclamation without due process; but is it really due process?

Today, the Supreme Court responded to an emergency motion filed by the Trump regime by vacating Judge Boasberg’s temporary restraining orders that expanded the class of defendants deported under the Alien Enemies Act, and to return them to the United States pending the outcome of the case on the merits.

If you’ve been following my videos and posts, you’ll recall that the Trump regime signed an Alien Enemies Act proclamation in the dark of night March 14th, and kept it a secret as they rounded up people they allege belong to the Tren de Aragua gang to put them on planes before a court could stop them. Lawyers representing five of the detainees filed a lawsuit in the early morning hours of March 15th, resulting in Judge Boasberg holding an emergency hearing which resulted in an order to turn the planes around, bring the deportees back to the United States, and to stop deporting anyone under the AEA proclamation for 14 days.

The Trump administration blatantly defied that order, and today, the Supreme Court rewarded them for that defiance. Not only was the contempt not addressed in the ruling from the high court, but also absent was a resolution to the question of whether the Alien Enemies Act is appropriate given we’re not at war, and any semblance of judicial review on their conclusion that habeas claims are the only remedy for due process concerns.

The five male justices have issued a glib, “four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation,” as Justice Jackson so eloquently dissented.

She also points out that “[s]urely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary.” This is a common theme in Justice Sotomayor’s dissent as well, with whom Justices Kagan and Jackson join, and with whom Justice Barrett joins in part:

Critically, even the majority today agrees, and the Federal Government now admits, that individuals subject to removal under the Alien Enemies Act are entitled to adequate notice and judicial review before they can be removed. That should have been the end of the matter. Yet, with “barebones briefing, no argument, and scarce time for reflection,” the Court announces that legal challenges to an individual’s removal under the Alien Enemies Act must be brought in habeas petitions in the district where they are detained.

The Court’s legal conclusion is suspect. The Court intervenes anyway, granting the Government extraordinary relief and vacating the District Court’s order on that basis alone. It does so without mention of the grave harm Plaintiffs will face if they are erroneously removed to El Salvador or regard for the Government’s attempts to subvert the judicial process throughout this litigation. Because the Court should not reward the Government’s efforts to erode the rule of law with discretionary equitable relief, I respectfully dissent.

And of course this court relies on habeas in the district where migrants are detained - which is going to be largely in the conservative 5th district - which will almost always side with the Trump administration’s determinations. That’s not due process. That’s an illegal outcome in search of a bullshit process.

This short notice, emergency docket opinion - bereft of thoughtful briefing or oral argument - is especially disturbing to me given the six month delay enjoyed by Donald Trump while waiting to be crowned king that ultimately pushed the criminal proceedings against him well past the election.

But this case hadn’t even reached the preliminary injunction stage - and even though Temporary Restraining Orders are usually not appealable, the Supreme Court spent all of six days to create a new “rule for the ages” while throwing the rest of us under the bus. They have decided that while people deported under the Alien Enemies Act proclamation are entitled to due process - they’ve relegated that to habeas claims filed in the jurisdiction of their detention. Even Judge Boasberg didn’t hear arguments about what due process would look like because he conceded that would require a lot of briefing and argument. But not for the Supreme Court. Without a scintilla of briefing, they decided habeas is the proper remedy.

Justice Sotomayor: Against the backdrop of the U. S. Government’s unprecedented deportation of dozens of immigrants to a foreign prison without due process, a majority of this Court sees fit to vacate the District Court’s order. The reason, apparently, is that the majority thinks plaintiffs’ claims should have been styled as habeas actions and filed in the districts of their detention. In reaching that result, the majority flouts well-established limits on its jurisdiction, creates new law on the emergency docket, and elides the serious threat our intervention poses to the lives of individual detainees.

As an initial matter, the majority’s assertion that plaintiffs’ claims “sound” in habeas is in tension with this Court’s understanding of habeas corpus as, at its core, an avenue for a person in custody to “attack . . . the legality of that custody” and “to secure release from illegal custody.” The plaintiffs in this case sued not to challenge their detention, but to protect themselves from summary deportation pursuant to the Proclamation. Indeed, because all of the plaintiffs were already in immigration detention under other statutes when the Government subjected them to the Proclamation, they “have repeatedly emphasized throughout this litigation that they ‘do not seek release from custody’ ” and are not “contesting the validity of their confinement or seeking to shorten its duration.”

Against that backdrop, there is every reason to question the majority’s hurried conclusion that habeas relief supplies the exclusive means to challenge removal under the Alien Enemies Act. At the very least, the question is a thorny one, and this emergency application was not the place to resolve it.

Meanwhile, funneling plaintiffs’ claims into individual habeas actions across the Nation risks exposing them to severe and irreparable harm. Rather than seeking to enjoin implementation of the President’s Proclamation against all Venezuelan nationals in immigration detention, detainees scattered across the country must each obtain counsel and file habeas petitions on their own accord, all without knowing whether they will remain in detention where they were arrested or be secretly transferred to an alternative location.

That requirement may have life or death consequences. Individuals who are unable to secure counsel, or who cannot timely appeal an adverse judgment rendered by a habeas court, face the prospect of removal directly into the perilous conditions of El Salvador’s CECOT, where detainees suffer egregious human rights abuses.

The other thing missing is any instruction on what to do with those who have already been deported to CECOT without due process. Is the government supposed to give them notice, return them to Texas, and grant them habeas hearings? Who makes sure that gets done? Who ensures they aren’t using their weird point system based on tattoos ICE got from a white dude named Pete in the UK in 2016?

Steve Vladeck writes in his One First publication that “there is good case law to the effect that venue for a habeas petition filed by someone outside the United States is proper in the D.C. district court…[s]o lawyers could presumably try to file a habeas petition in D.C. on behalf of the individuals already removed to El Salvador—one that will depend upon how Abrego Garcia is resolved. But even if the Supreme Court sides with the lower courts there, and holds that federal courts can order the federal government to take steps to bring these folks back if their removals were unlawful, by vacating Boasberg’s TROs, the majority has made that review that much more difficult and potentially ineffective.”

So now, it appears that each person already in CECOT has to find a lawyer and file a habeas petition (which costs money) in DC. If they can’t afford counsel, will one be appointed for them? The entire purpose of a class action is addressed in Justice Sotomayor’s dissent: “One great advantage of class action treatment . . . is the opportunity to save the enormous transaction costs of piecemeal litigation.” Ortiz v. Fibreboard Corp.

This ruling is garbage, but give this extremist court, it should not come as a surprise to anyone.

~AG

PHILIP HOLSINGER