The Supreme Court tossed on Monday a series of restraining orders that barred the Trump administration from removing people under the Alien Enemies Act, in a 5-4 decision decided largely over whether the case was brought in the right place and form.
The Court held that challenges to removals under the Alien Enemies Act must be brought as habeas corpus petitions. The majority held short of ruling on thornier questions of whether the act applies to those already removed and on the scope of the judiciary’s ability to review challenges to the law.
Justices in the majority did address some of what made the Trump administration’s removals of more than two hundred Venezuelans to an El Salvador labor camp so unprecedented: they were taken out of the country without any review or due process, at a level of extreme haste that almost certainly resulted in people who had no connection to Tren de Aragua, the Venezuelan gang against which the Trump administration made a dubious proclamation of enemy invasion, being deported.
The Court mandated that the government provide a minimum opportunity for due process to those slated to be removed under the law. The government must notify detainees that they’re subject to removal, the Court said, with enough time as to allow them to file habeas corpus claims challenging their deportation.
The ACLU and Democracy Forward filed the lawsuit as a class-action case in Washington, D.C. on behalf of four Venezuelans held in Texas in the early hours of March 15. By that point, TPM reported last month, ICE had spent weeks detaining Venezuelans on the basis of having tattoos, seemingly finding that to be evidence enough to qualify them as members of Tren de Aragua.
The ACLU case went to D.C. Chief Judge James Boasberg. After issuing an initial restraining order blocking the four plaintiffs’ removal, he convened a late afternoon hearing on March 15. In between that time, the Trump administration publicly released its Alien Enemies Act proclamation, giving it legal effect.
As Boasberg’s hearing began, planes carrying deportees were already on their way to El Salvador. Boasberg issued an order mandating the planes’ return as they were in midair; they, however, continued on to El Salvador, depositing those removed in a labor camp celebrated by the country’s leader, strongman Nayib Bukele.
Per the ruling, the plaintiffs will now have to file habeas petitions in Texas. Future deportees under the Alien Enemies Act will also seemingly be limited to challenging their removal under habeas corpus.
Justice Amy Coney Barrett joined the three Democratic appointees in dissenting, joining portions of a dissent authored by Justice Sonya Sotomayor.
Sotomayor wrote that the Trump administration seemingly had planned to “rush plaintiffs out of the country before a court could decide” whether their removal was lawful.
Examples of how fraught that decision was have already appeared. Kilmar Abrego Garcia was deported to the El Salvador camp on March 15 contra a standing immigration court order barring his removal. The Trump administration admitted that, in his case, it had made an error, but maintains that it has no obligation to correct the mistake. It asked the Court to hear its appeal of a lower court order mandating that it return Abrego Garcia earlier on Monday.
Sotomayor wrote that the implication of the administration’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,” she wrote.
Justice Ketanji Brown Jackson compared the ruling in a separate dissent to the 1944 Korematsu ruling, which upheld President Franklin Delano Roosevelt’s internment of people of Japanese descent during World War II.
“But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences,” she wrote. “It just seems we are now less willing to face it.”
Read the ruling below.
The decision is bad, but not 100% catastrophic. (SCOTUS is so biased nowadays this is a silver lining). The main holding is there must be sufficient time to file a habeas corpus petition contesting the arrest. This is not a bad result. The Court, however, also held the petition has to be filed where the kidnapped immigrant is being held, and not where he was taken by ICE. This holding is in conflict with the “sufficient time” element of the decision. (It doesn’t make sense to me).
There is no ruling on the underlying use of the Alien Enemies Act to kidnap these purported members of a gang. However, it’s not good the Court refused to even consider the misuse of the old law (which was intended only to be used in a war).
All in all, this decision shows at least 5 right wingers bend over backwards to accommodate the fascist Trump regime. I hope it’s not predictive of other decisions coming soon.
Marcy’s take.
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A quick take based on the news reports is that the Supreme Court is saying that a person’s right to habeas corpus can be defeated if ICE can spirit that person out of the country quickly enough.
Your silver lining maybe?
I don’t think that’s right. They lost on that issue. They must give them an opportunity to habeas corpus in the future.