Once again, the U.S. Supreme Court has been forced to state the obvious: giving people detained under Donald Trump’s spurious Alien Enemies Act invocation 24 hours in detention to find a lawyer and file a complex habeas corpus petition before being loaded onto planes to a foreign gulag does not count as due process.
The high court ruling came after the justices were already forced to stop the administration’s efforts to load hundreds of people onto planes after it had previously already said they were entitled to due process. Though we commend this decision, it is deeply concerning that the Supremes have on multiple occasions already been forced to assert that due process rights continue to exist in the United States.
The administration may be populated with sycophants and true believers, but Justice Department attorneys and Homeland Security officials are not stupid. They know that their efforts to keep deporting people violated the spirit and letter of multiple court rulings. They’ve time and time again attempted to skirt around orders via mealy-mouthed, strained interpretations such as their farcical arguments in the case of Kilmar Abrego Garcia, whose return the Supreme Court had separately ordered the Trump administration to “facilitate.”
Yet the Maryland man remains in the CECOT mega-prison because the administration falsely asserts that it has no power to get the Salvadoran government to release him from custody despite paying for and directing his imprisonment. No reasonable person could conclude that the DOJ‘s interpretation of “facilitate” — to provide a plane if he somehow escapes from prison — makes sense. That’s why the court is very clear here: the administration cannot deport anyone from the plaintiff class, nor anyone under the AEA at all without allowing them a real chance to contest their removal.
The seven-member majority in this opinion is clear about the fact that it is not ruling on the underlying merits of the AEA invocation. We believe this to be a mistake; as Justice Brett Kavanaugh points out in his concurrence, the court has more than enough of a procedural record at this stage to take on the issue of the president’s absurd declaration that the United States is at war with a gang and that this permits summary removals.
In any case, this is almost certain to end up before the Big Nine again very soon, following whatever ruling the lower court issues. If and when it does, we hope that liberals and conservatives on the court — barring the usual suspects of Clarence Thomas and Sam Alito, who predictably dissented here — will similarly unite in defense of basic compliance with the law, which Trump and his cronies have so openly flaunted in their pursuit of a disastrous mass deportation agenda.
As we’ve said, this is framed as an immigration issue, but really implicates everyone’s rights. The government is saying that it can grab you off the street and give you 24 hours to seek redress before you’re on a plane to a foreign prison. Is that enough time for you to prove that you are, say, a citizen? And if you are, and are deported, the administration has been adamant that it won’t do anything to reverse its mistakes. Either these rights exist for everyone, or they don’t exist at all.
