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Now that there's been time to carefully consider the Supreme Court's emergency stay of Donald Trump's use of the Alien Enemies Act to deport alleged "enemy invaders," there are a few nuances worth mentioning that did not make it into our piece yesterday.
To start, and most important, this was an emergency stay in every sense of the word. It was issued late at night; the latest that this particular Court has ever issued a decision. It was also issued on a holiday weekend, and without waiting for Samuel Alito to complete his dissent (which he published about a day later). All of this is highly irregular, and there's really only one reading: The Supremes decided that time was of the essence, because they simply do not trust the Trump administration anymore. In particular, John Roberts and his six colleagues (apparently) believed that if they did not lay down the law, the White House would seize the opportunity to get as many people on planes and headed to El Salvador as was possible. After all, the administration has taken the position that once someone is beyond U.S. borders, they are beyond the control of the federal courts.
Beyond that, reader M.H. in Te Horo Beach, NZ, who is a retired attorney, wrote in to explain some aspects of the case that we did not get quite right, because there are so many moving parts:
Let me help you to understand all of these cases. Judge James Boasberg was not appealed to the Fifth Circuit. He is in the D.C. Circuit.
What happened was that the ACLU learned that the White House was getting ready to deport a bunch of folks out of Texas. The flights looked like they were about to happen at any moment, so ACLU counsel rushed to the Northern District of Texas to seek a temporary restraining order (TRO) and to ask that the court certify a class action which would address the question of whether the administration can use the Alien Enemies Act (AEA) to deport people as a general matter (i.e., without there being a war).
The judge in Texas did not move fast enough, so the ACLU went into overdrive and filed in the Fifth Circuit, and the Supreme Court, and also raised the issue with Boasberg in D.C. Boasberg said SCOTUS was pretty clear he had no jurisdiction and that it had to go through the Texas court and Fifth Circuit.
The Fifth Circuit threw out the request for emergency relief on the ground that the ACLU had not allowed the lower court to rule. The Supreme Court decided it did not care about such niceties, however, and issued its stay order, because they did not trust the administration to allow the process to proceed without putting the plane in the air. In other words, they did not want another argument that the plane is in El Salvador, so, oh well... (Alito later complained in dissent about not following procedure.)
In the meantime, the judge in Texas (James Wesley Hendrix, a Trump appointee) finally ruled and denied the motion for a TRO on the grounds that the U.S. assured him that they would not deport anyone. Alas, what the U.S. actually said was that they would not deport anyone who had filed a separate lawsuit challenging the deportation. Of course, that left a lot of folks on the bus heading toward the plane. The judge also denied the request for a class action. The ACLU has now appealed that ruling to the Fifth Circuit.
In the meantime, the White House had filed a brief with the Supreme Court asking them to dissolve their stay order on the grounds that there was adequate notice, they crossed their hearts and hoped to die that no one would be deported pending review, and a class action is unwarranted. The ACLU replied and argued that the notices are completely inadequate because they are in English only and did not explain how to appeal the decision to deport. Further, how exactly were these people in detention going to get an attorney? The ACLU included a citation to a news video showing a bus full of immigrants heading to the airport, and argued that the class action should stand since all of the people on that bus have the same issue—whether the administration can use the AEA to deport people.
The Supreme Court has not ruled on any of this. My guess is that they will wait for the Fifth Circuit unless the Fifth Circuit drags its feet.
In the meantime, Boasberg has found probable cause to hold the administration in contempt, but he needs to identify who is to be held in contempt. So, he issued an order explaining what he wanted to do. The U.S. filed an emergency appeal, and the D.C. Circuit stayed his order. So far as I can tell, nothing has happened since. This case is different than what is happening in Texas, but the common thread is that the Trump administration is going to put people on planes no matter what any court says. It seems clear to me that the Supreme Court learned its lesson from the case that was before Boasberg and is not going to let that happen again with the case that is before the Fifth Circuit (or any other case). The lengths to which this administration is failing to follow court orders is frankly shocking and if SCOTUS does not put its foot down, we are going to see more of this in the days and weeks to come. This seems to be the first step.
Thanks, M.H.! The tea leaves would seem to suggest that, sooner or later, the administration is going to get adverse news on this matter from SCOTUS. It is at least possible the vote on the emergency stay was 5-4, since we know there were at least five votes for the stay, and we know there were two dissents, while the other two votes could be on either side of the question. That said, it would be unusual for a justice to dissent in something like this, and yet not join the dissent written by Alito (or to write their own), so the likelihood is that the vote was 7-2. If so, that plus the alacrity with which SCOTUS moved here does not say good things about the strength of the administration's legal position.
Of course, Trump is furious, and he spent yesterday screaming about how awful the Supreme Court is these days, and how it's just not possible to hold trials for so many immigrants. It would seem that, in his copy of the Constitution, due process is only afforded if the country happens to have the time and the energy, otherwise, tough luck.
And speaking of due process, Trump also took to his smaller-than-he-claims-like-so-many-things social media platform to share some important "evidence" in the case against Kilmar Abrego Garcia. Here's the picture that Trump posted:
It was accompanied by this message:
This is the man, Kilmar Abrego Garcia, that the Courts are trying to save from being deported? He was supposed to be, according to the Judge and the Democrats, a wonderful father from Maryland, but then they noticed he had "MS-13" tattooed onto his knuckles (and lots of really bad stories about his past!). This is the gang that is, perhaps, the worst of them all. What is wrong with our Country?
And now, here is a close-up of the image Trump is holding:
Garcia really does have those images tattooed onto his fingers. But the M S 1 3 and the 'marijuana,' 'smile,' 'cross' and 'skull' have been added via Photoshop. And not even well-done Photoshop; this is actually some of the clumsiest work we've ever seen. Meanwhile, the President of the United States is putting this forward as his justification for his no-due-process deportation. It does not speak well for any case the government might mount once this finally gets in front of a judge. (Z)