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Early Saturday morning, the Supreme Court ordered Donald Trump to temporarily stop sending Venezuelan nationals detained in Texas to the CECOT prison in El Salvador. The vote was 7-2, with Justices Clarence Thomas and Samuel Alito dissenting. Trump claims that he has the authority to do so under an 18th century law, the Alien Enemies Act, that gives the president emergency powers in the event the country is at war (which it is not) or has been invaded (which it has not under any normal definition of "invaded").
This 1-paragraph ruling was a follow-up of a unanimous April 7 ruling that detainees were entitled to be given reasonable notice of their imminent deportation so they could contest it in court. The Saturday ruling indicates that the Court believes the administration did not obey either the spirit or letter of the April 7 order when it gave the detainees a 1-page notice of their upcoming deportation in English (a language most of them do not speak) that does not describe their right to due process and how to achieve it. It also indicates that the Court is not ruling whether the detainees are good people or bad people, but simply that everyone in the U.S. is entitled to due process. If the government has evidence that the detainees are in the country illegally and should be deported under the Alien Enemies Act, it has to make that case in court and convince an immigration judge. It can't just round them up and ship them out without due process.
What happens next is up to the U.S. Court of Appeals for the Fifth Circuit. Earlier, U.S. District Judge James Boasberg ordered contempt proceedings against the administration for disobeying his order to give him information about earlier deportations. His ruling was appealed to the Fifth Circuit, so we are now waiting for its decision. Once it has decided, the Supreme Court may (or may not) continue with the case.
There are a lot of moving parts here, with multiple cases going on at the same time. What is clear is that Trump is very determined to at least try to live up to his campaign promise to deport 11 million undocumented immigrants. Many people thought he would deport a few hundred, get a photo op with them on the way out, and declare victory. You could argue that he's done the first part of that, inasmuch as he's focusing on high-profile deportations, rather than mass deportations. However, he has not declared victory, and he's still pressing forward. So, he might be more serious about running up his totals.
It is our guess that Trump will do everything he can to avoid having Kilmar Abrego Garcia come home even though he was deported by mistake. The real problem is that if he comes back, he will be the main news story for a week and will tell every reporter within a mile what a hell hole the CECOT prison is. This could turn public opinion against deporting people there. Since Trump doesn't have any place else to send them, he will try to avoid having Garcia come back unless the Supreme Court gives him a 9-0 point-blank order to do so, and maybe not even then.
One point that hasn't been addressed much (or at all) is where the deportees are being sent. Normally, deportees are driven or flown to their home country and released there. Now they are being sent to a prison in a third-country and given a life sentence. That is not how deportations are supposed to work, especially not for people who have not been convicted in court of any crime.
In rural Louisiana, 7,000 immigrants are awaiting deportation. The acting director of ICE, Todd Lyons, said he wants "to get better at treating this like a business, like Amazon, trying to get your product delivered in 24 hours." Only here the "product" is an immigrant and the delivery location is a prison in El Salvador that didn't actually order the "product" online and is not in any hurry to receive it. Lyons wants to build a pipeline and sees it primarily as a logistical problem to be solved, not unlike the folks who built the detention centers for Japanese-Americans in California in 1942 or the folks who built the Nazi concentration camps in the 1940s. One cannot help but think of Hannah Arendt's observations about the banality of evil.
Louisiana has become #2 in holding detainees (after Texas), even though it has few immigrants and has no border with Mexico. It has nine detention centers, mostly in the northwestern part of the state, hours from cities and lawyers. Conditions there are said to be deplorable. It was chosen somewhat haphazardly. It just happened to have quite a bit of excess prison capacity that could be utilized quickly. Also, it is in the conservative Fifth Circuit, so its appeals court gets cases bubbling up from below.
ICE wants to scale up from its current 41,000 beds to 100,000 beds. The money isn't there, but ICE is awarding construction contracts anyway. No doubt Trump's cronies can make a pretty penny in this business. Two of the contractors, The Geo Group and Deployed Resources LLC, have seen their stock go up 94% since Jan. 20. This story is far from over and may soon become a constitutional crisis if the Supreme Court gives an unambiguous order and Trump just ignores it.
To Trump's credit (or maybe Stephen Miller's or Tom Homan's), if the administration wants a constitutional crisis, this is as good a case as any. Trump will make the argument that the Venezuelans are Bad People and should be deported. End of story. Many people will agree with that. But that is not the issue at all. The issue is whether the administration can do that without holding any hearing and getting an immigration judge to rule that the immigrants may be deported. Absent that, the administration will be able to round up anyone, even people who have not broken any law, and send them off to a foreign prison for life, just because it wants to. That said, many people aren't going to be interested in the "process" argument. They are going to agree with Trump that Bad People should be deported, the law be damned. This is why it is potentially a good issue for Trump. Birthright citizenship is a tougher issue since most people support it. (V)