Supreme Court Affirms Due Process Rights For Deportees… WINK, WINK!

Last night, all nine members of the Supreme Court assured us that the Trump administration can’t send masked secret police to sweep up everyone with an “I HEART MOM” tattoo and spirit them away to El Salvadoran slave gulags without due process. Fans of law, order, or basic human decency might take this as good news.

But what does due process mean in a world where the administration secretly disappears people, ships them overseas before even publishing an executive order authorizing it, and then tells the courts, “Oops, too late!”? The majority not only doesn’t answer that question, it frankly doesn’t want to hear about it, thank you very much!

The unsigned majority opinion — either because no one wanted their name on this mess or the five couldn’t agree on who should get credit for signing functional death warrants for unsuspecting gay barbers — handwaves the record as it exists and lifted the temporary restraining orders blocking the government from sending more people to foreign hell camp. The move came a day before a scheduled lower court hearing that could have even further developed a record of government abuses — a hearing the Supreme Court helpfully mooted for the administration.

Instead, the majority ramrodded a shadow docket opinion without full briefing or argument on the strength of the federal government pinky swearing that it will afford everyone involved due process. Someone needs to let Yale Law’s JD Vance know!

The detainees’ rights against summary removal, however, are not currently in dispute. The Government expressly agrees that “TdA members subject to removal under the Alien Enemies Act get judicial review.”

Except, you know, the people they already shipped to El Salvador while telling the courts that it doesn’t have to follow laws once its planes cross into the situationally named Gulf of “America.” A claim it made in conjunction with telling the court that it isn’t obligated to follow oral orders and that the government is incapable of recalling a detainee that they admit was wrongfully sent to El Salvador even though the United States is paying El Salvador to hold that person.

Taken together — or, frankly, separately — these might undermine the credibility of the government’s commitment to the rights it “expressly agrees” exist. Which is why the conservative majority moved so quickly to head off further proceedings that might unveil more damning indicts.

The administration bases its authority on the Alien Enemies Act of 1798, a wartime statute invoked during the War of 1812, WWI, and WWII. Trump dusted it off in peacetime to declare a Venezuelan street gang a “foreign nation” conducting an “invasion.” Is this supported by the text of the statute? Not really. But the majority suggests that it’s unreviewable whether the administration whips it out in peacetime, or imposes it against a decidedly non-governmental criminal gang, or expands its deportation power to include selling people to another country’s Squid Game theme park.

Note that the Alien Enemies Act was never used to send a generation of real-life Vito Corleones back to Sicily as an “invading” force, even though the United States actually went to war with Italy along the way. If we’re letting the president declare imaginary wars to round up immigrants, can we at least bring back the War on Poverty and send off Elon?

Extending it to made up, undeclared wars represents a massive executive overreach and — unlike the student loan forgiveness plan these same justices bellyached about — a real and significant breach of the separation of powers. But the majority decides that the decision to invoke a statute giving the president sweeping secret police powers is unreviewable.

Instead, the majority envisions “due process” in the form of individualized habeas petitions that every potential deportee must timely file in the jurisdiction where they end up once ICE pulls the hood off.

Regardless of whether the detainees formally request release from confinement, because their claims for relief “‘necessarily imply the invalidity’ ” of their confinement and removal under the AEA, their claims fall within the “core” of the writ of habeas corpus and thus must be brought in habeas.

“Must” does a lot of warrantless lifting in this passage. As Professor Steve Vladeck notes, “although habeas is a vehicle through which to challenge the government’s use of the Alien Enemy Act, it’s not (and never has been) the exclusive vehicle for doing so. But here we are.”

But here we are, indeed. Legal historians may well look back on this period in as the “But Here We Are” epoch, where opinion after opinion comes down casually eliding obvious points with a proverbial shrug.

Few carry fully realized habeas petitions in their pockets and most of those targeted by the government won’t have the luxury of legal counsel able to swoop in to protect them. It is, quite literally, a divide and conquer strategy that robs deportees of the right to question the whole basis of the administration’s authority to go after ANY of these people and substitutes it with a right for each individual to challenge how the law applies to them specifically… within a limited, invisible timeframe.

It’s a particularly galling requirement when the government already confessed that they don’t have any evidence against a bunch of these people! In briefing below, the government argued that “the lack of specific information about each individual actually highlights the risk they pose,” claiming that the Alien Enemies Act allows targeting threatening groups and doesn’t require justifying removals person by person. And while the Supreme Court does nothing to disturb that logic-by-stereotype, it does insist that any challenge to this sweeping dragnet must be made individually. This imbalance makes no sense… in the “core” habeas world, one side says “we’re holding this person lawfully” and the other says “no you’re not.” Under the framework blessed by this opinion the AEA detainee says “here are individual reasons to let me go” and the government is allowed — without review — to say “under this law we don’t need any individualized justifications.”

Vladeck notes another practical reason why the Court knows this is a false offer:

Justice Sotomayor’s dissent raises the specter of individuals being held all over the country, but I think it’s more likely most of these cases end up in the Southern District of Texas—and, thus, in the Fifth Circuit. (Much like the Department of Education ruling is going to likely mean that at least some of the funding cutoff cases end up in the Court of Federal Claims.)

I don’t think I’m speaking out of school when I suggest that there is no court in the country more likely to side with the Trump administration on everything from whether we’re under an “invasion” from Tren de Aragua to the amount of process to which alleged members of TdA are entitled than the New Orleans-based federal appeals court. Trading APA review for habeas, even if the remedies were otherwise commensurate, is trading the ideologically diverse (and national security-experienced) D.C. federal courts for the most right-leaning federal courts in the country. And the justices know that, too.

Justice Sotomayor and Vladeck both know what that means: this isn’t about core habeas principles — it’s about forum shopping by force.

And if the ability to functionally question the Enemy Aliens Act either as invoked or as applied to an individual is this compromised, it means there’s really no protection for anyone under the opinion the majority cobbled together. In other words:

Not unlike the Trump immunity decision that glossed over the fact that Trump’s lawyers were openly admitting that the opinion they would ultimately receive was a greenlight to use SEAL Team 6 to whack political rivals, Chief Justice Roberts again nukes constitutional guardrails while reassuring us that “don’t worry, he probably won’t.”

My man is getting awfully comfortable with his bargain whore status.

Justice Sotomayor, however, does not live in fantasy land:

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.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.