The Supreme Court bestirs itself

Leaving the Trump regime room to maneuver is always a mistake.

Photo by Ian Hutchinson on Unsplash

When the Supreme Court issued its per curium opinion on April 7 holding that those contesting their deportation under the Alien Enemies Act had to proceed in the district in which they were held and given due process to object, I suspected its refusal to get to the merits of the matter and to definitively halt extrajudicial deportations was a mistake. Unfortunately, I was right.

Beginning Friday evening, the ACLU made a remarkable series of moves to halt the apparent rushed deportation of busloads of Venezuelans, seemingly in contravention of the Supreme Court’s order just days ago making clear that “detainees must receive notice after the date of this order that they are subject to removal…. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”

Constitutional scholar Steve Vladeck lays out the government’s shenanigans:

In the S.D. Tex. case (J.A.V. v. Trump), Judge Fernando Rodriguez (not that it should matter, but a Trump appointee) barred the government from removing the named plaintiffs or anyone else “that Respondents claim are subject to removal under the [AEA] Proclamation, from the El Valle Detention Center.” (The other rulings were also geographically specific.)

Then things got messy. According to media reports, starting on Thursday, a number of non-citizens being held at the Bluebonnet detention facility in Anson, Texas (in the Northern District of Texas) were given notices of their imminent removal under the AEA (in English only), with no guidance as to how they could challenge their removal in advance. Not only did this appear to be in direct contravention of the Supreme Court’s ruling in J.G.G., but it also raised the question of whether the government was moving detainees to Bluebonnet, specifically, to get around the district court orders barring removals of individuals being held at El Valle and other facilities.

The ACLU, acting with lightning speed, then dashed to Judge James Boasberg in Washington, D.C., to halt the apparent deportations (denied), back to the Northern District of Texas (denied) and up to the Fifth Circuit. Sensing the government might again rush migrants out from under the nose of the courts, the ACLU went to the Supreme Court. Low and behold, the Supreme Court shouted “STOP!” Actually, the Supreme Court in an unsigned order (with dissents from Justices Samuel A. Alito Jr. and Clarence Thomas to follow) explicitly told the government not to deport anyone pending an order of the Supreme Court.

The magnificent ACLU lawyering might not only have preserved another batch of migrants due process rights, but it also finally, finally, forced the Supreme Court—which has been loath to directly confront wanna-be despot Donald Trump—to put an end to the contemptuous cat-and-mouse game the government has been playing with the courts. Trump and his minions have treated court orders as mere suggestions and injunctions as speed bumps on their quest to create a lawless penal system to eject those legally in the United States (and maybe even “homegrowns,” i.e. citizens) to hellish foreign prison in a banana republic paid to do Trump’s bidding.

The Supreme Court in its April 7 ruling should have heeded the dissents of Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson and Amy Coney Barrett. The female side of the court figured out exactly what Trump was up to. (“The Government’s plan, it appeared, was to rush plaintiffs out of the country before a court could decide whether the President’s invocation of the Alien Enemies Act was lawful or whether these individuals were, in fact, members of Tren de Aragua.”) The dissenters warned:

The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise. . . .

To the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court. (Emphasis added.)

And that is exactly where we wound up on Friday evening when, in the nick of time, the ACLU raced to three courtrooms to stop what the dissenters feared would occur—a direct violation of the Supreme Court’s order.

We can only hope that at least five justices’ patience has been exhausted. Perhaps now, the court will do its job, one that it has shirked and even self-sabotaged (by granting extensive criminal immunity to the president who instigated an insurrection). It is the job of the judicial branch to require the other two branches to operate under the laws and Constitution of the United States. If it cannot and will not do that, it writes itself out of existence and consigns the country to despotism. It seems it is now or never for the Supreme Court to decide if we are a nation of laws, or a nation run by a lawless bully.

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