In normal times, it might be possible to defend the Supreme Court's 5-4 ruling on Monday vacating a pair of temporary restraining orders in the Alien Enemy Act case. But these aren't normal times.
This is a very disturbing decision. In my opinion, the majority employed a hypertechnical legal argument to avoid an undeniable due process violation. The ruling raises serious questions about the Supreme Court as a guardrail against clear constitutional violations by the Trump administration.
I've been wondering whether there is anything Trump could do that could generate a 9-0 SCOTUS ruling against him. This action supports my hunch that there is literally no abuse of power that would produce a unanimous rebuke from the court.
It looks like at least four justices would allow Trump to get away with nearly anything. Only the Chief Justice and Justice Barrett are a possible check. The Chief Justice was the biggest disappointment yesterday.
This so frustrating. I had some hope that the court would recognize what a terrible president this sets and stand up for the people. We put innocent people in torture gulags. We need to get them back and make amends.
John Roberts will be remembered as one of the worst people ever appointed to the Supreme Court. He is not an "institutionalist," he is a political hack and a coward.
I came to the conclusion that Johnnybob Roberts cemented that position, the worst, when 15 years ago he poisonous cabal penned Citizens United. Which to my thinking was the end of our universal representative government. And that was not good enough for Johnniebob so he gave us Trump v. The United States. A decision for all intents and purposes made Donnybob King. But alas once $$ became Constitutionally protected speech all bets were off and continue to be SOP that the rich shall rule the poor.
We have justices who may know the law but are seemingly unaware of how autocrats gobble power by flattening a naive judiciary. God save the republic, because SCOTUS surely will not.
Pretty good example of “don’t bother me with the picky legal details, but let me focus on the policy I object to” approach that characterized the judicial overreaching that has ultimately produced Trump. The argument that the habeas vs APA legal issue should be decided by which is more effective for the desired policy outcome is not legal analysis.
Isn’t the point that SCOTUS not focusing on the AEA doesn’t allow petitioners to get general relief from illegal actions, but rather has to litigate each case as a habeas petition? That’s not policy focused at all, that’s about whether the law applies or not.
that is clearly the policy point. whether the law applies is the crux of the disagreement between the majority and the dissent. 5 people said APA not available, 3 people said it clearly was, and one said it was a close question that should probably be decided after full briefing and argument. But unless you think the majority view is likely to change, whichever way Barrett goes is kinda irrelevant, since there are still five votes for the per curiam result.
It’s about following the actual provisions of the law (AEA, not APA). The four dissenters do that. The majority is choosing a policy outcome they prefer by ignoring the plain text of the law and employing some sophistry to change the subject. That’s just fact. Mr. Vladeck sees the fact clearly.
Justice Sotomayor provided compelling counter-arguments to the majority's reasoning - the "picky legal details". Her arguments seem compelling, and you've said nothing to refute them. Unlike the dissenting justices, you're ignoring the picky legal details.
so you think the dissent is right and I find the majority more compelling. what I was referring to was Vladeck's forces on results rather than analysis. Reasonable people can differ, I suppose, on whether the dissent is compelling -- I don't find it so -- but that was not the point of my note.
"That review may still suffice in individual cases, but what the Court’s ruling completely refuses to engage with (unlike Justice Sotomayor’s dissent, which tackles it head-on) is how much the Trump administration is attempting to use the Alien Enemy Act systemically—for mass, summary removals rather than case-by-case, individualized adjudications."
Agreed, but what I'm unclear about is whether Trump can continue these mass deportations now that the Court has made it quite clear that habeas remains a must (*thankfully*). Also, is naming a specific "group" a de facto prerequisite under the Alien Enemy Act? Just curious if Trump might actually try to "designate" any given Latino male as a member of Tren de Aragua, under ridiculously obvious pretenses.
The example's not TdA, but I think the Trump administration's already crossed that line. Or at least strongly indicated they're willing to cross it, and they believe they will get away with it.
In the case before Federal District Court Judge Paula Xinis, ICE/DOJ originally claimed Kilmar Armando Abrego Garcia was a member of MS-13 because of the following evidence: A Chicago Bulls hat, a hoodie and a CI who claimed Garcia's a member of the gang's clique in western NY, where Garcia's never lived. It's complete and utter nonsense, which DOJ eventually admitted.
The administration was still publicly peddling this lie as recently as a week ago. On April 1, White House talking head (aka, press secretary) Karoline Leavitt claimed there's "a lot of evidence" that Garcia is a *convicted* member of MS-13. Not satisfied with that whopper, she stated "I saw it this morning." Leavitt or Bondi (or both) also claimed Garcia's a "leader" of MS-13.
If this wasn't disturbing enough, DOJ attorney Erez Reuveni and his supervisor have been placed on leave for failing to follow Bondi's requirement attorneys "zealously advocate for the United States."
Apparently not satisfied with his shameful vote in the AEA case, late this afternoon John Roberts stayed Judge Xinis's order requiring Garcia's return by midnight tonight. The gang Barrio 18 has threatened Garcia's life on numerous occasions, which is why he was (legally) in the US in the first place. By the time Roberts gets done wasting time, Garcia may be dead.
5-4 decisions in which the majority has no interest in the question of open defiance of court orders raises two issues - both disturbing: 1. this court would rather deal with legal niceties than how courts will ever make this administration follow the Constitution and the laws and 2. why should a lower court bother with this defiance when this majority clearly does not have their back? So the Administration puts up "Screw you" to judges on social media and all of us who are concerned about losing our Republic know that they can get away with it.
Just as someone of the Christian faith can find a passage somewhere in the Bible to defend just about any view, it seems this Court picks and chooses bits and pieces of law that will prop up whatever ideologically-driven decision they wish to reach.
Justice Jackson's dissent echoed Prof. Vladeck's admonition about the majority 'burying their heads in the sand', pointing out that "more and more of our most significant rulings (are) taking place in the shadows of our emergency docket...leav(ing) less and less of a trace." Sure seems that the conservative majority on the Court have no intent on reversing their pattern.
I and some of my classmates in the first year of law school recognized that Justices and judges regularly do what you describe in your first paragraph.
This is a very disturbing decision. In my opinion, the majority employed a hypertechnical legal argument to avoid an undeniable due process violation. The ruling raises serious questions about the Supreme Court as a guardrail against clear constitutional violations by the Trump administration.
I've been wondering whether there is anything Trump could do that could generate a 9-0 SCOTUS ruling against him. This action supports my hunch that there is literally no abuse of power that would produce a unanimous rebuke from the court.
It looks like at least four justices would allow Trump to get away with nearly anything. Only the Chief Justice and Justice Barrett are a possible check. The Chief Justice was the biggest disappointment yesterday.
This so frustrating. I had some hope that the court would recognize what a terrible president this sets and stand up for the people. We put innocent people in torture gulags. We need to get them back and make amends.
Terrible President and precedent!
John Roberts will be remembered as one of the worst people ever appointed to the Supreme Court. He is not an "institutionalist," he is a political hack and a coward.
At the rate he's going, Roberts is going to overtake Taney on the "Worst SCOTUS Justice" leaderboard.
Thanks for these "emergency" posts even though it scares the crap out of me when you start sounding alarmed like you deservedly (IMO) do in this one.
Yes. I had to spell check equanimity to describe what is no longer present.
I came to the conclusion that Johnnybob Roberts cemented that position, the worst, when 15 years ago he poisonous cabal penned Citizens United. Which to my thinking was the end of our universal representative government. And that was not good enough for Johnniebob so he gave us Trump v. The United States. A decision for all intents and purposes made Donnybob King. But alas once $$ became Constitutionally protected speech all bets were off and continue to be SOP that the rich shall rule the poor.
Thank you for taking the time to communicate your thoughts on this. The ruling is quite troubling.
I’m so profoundly disappointed in this decision. The only light I see in the darkness that covers this Court is that J. Coney-Barrett is showing
she can be independent of the predicables that lean so far right I wish they would fall off the bench.
Using the shadow docket to shadow suspend the writ of habeas corpus by requiring the disappeared to appear in habeas.
I’m in awe. They created a procedural ouroboros that eats people.
We have justices who may know the law but are seemingly unaware of how autocrats gobble power by flattening a naive judiciary. God save the republic, because SCOTUS surely will not.
Pretty good example of “don’t bother me with the picky legal details, but let me focus on the policy I object to” approach that characterized the judicial overreaching that has ultimately produced Trump. The argument that the habeas vs APA legal issue should be decided by which is more effective for the desired policy outcome is not legal analysis.
Isn’t the point that SCOTUS not focusing on the AEA doesn’t allow petitioners to get general relief from illegal actions, but rather has to litigate each case as a habeas petition? That’s not policy focused at all, that’s about whether the law applies or not.
that is clearly the policy point. whether the law applies is the crux of the disagreement between the majority and the dissent. 5 people said APA not available, 3 people said it clearly was, and one said it was a close question that should probably be decided after full briefing and argument. But unless you think the majority view is likely to change, whichever way Barrett goes is kinda irrelevant, since there are still five votes for the per curiam result.
It’s about following the actual provisions of the law (AEA, not APA). The four dissenters do that. The majority is choosing a policy outcome they prefer by ignoring the plain text of the law and employing some sophistry to change the subject. That’s just fact. Mr. Vladeck sees the fact clearly.
Justice Sotomayor provided compelling counter-arguments to the majority's reasoning - the "picky legal details". Her arguments seem compelling, and you've said nothing to refute them. Unlike the dissenting justices, you're ignoring the picky legal details.
so you think the dissent is right and I find the majority more compelling. what I was referring to was Vladeck's forces on results rather than analysis. Reasonable people can differ, I suppose, on whether the dissent is compelling -- I don't find it so -- but that was not the point of my note.
Fair enough.
"That review may still suffice in individual cases, but what the Court’s ruling completely refuses to engage with (unlike Justice Sotomayor’s dissent, which tackles it head-on) is how much the Trump administration is attempting to use the Alien Enemy Act systemically—for mass, summary removals rather than case-by-case, individualized adjudications."
Agreed, but what I'm unclear about is whether Trump can continue these mass deportations now that the Court has made it quite clear that habeas remains a must (*thankfully*). Also, is naming a specific "group" a de facto prerequisite under the Alien Enemy Act? Just curious if Trump might actually try to "designate" any given Latino male as a member of Tren de Aragua, under ridiculously obvious pretenses.
The example's not TdA, but I think the Trump administration's already crossed that line. Or at least strongly indicated they're willing to cross it, and they believe they will get away with it.
In the case before Federal District Court Judge Paula Xinis, ICE/DOJ originally claimed Kilmar Armando Abrego Garcia was a member of MS-13 because of the following evidence: A Chicago Bulls hat, a hoodie and a CI who claimed Garcia's a member of the gang's clique in western NY, where Garcia's never lived. It's complete and utter nonsense, which DOJ eventually admitted.
The administration was still publicly peddling this lie as recently as a week ago. On April 1, White House talking head (aka, press secretary) Karoline Leavitt claimed there's "a lot of evidence" that Garcia is a *convicted* member of MS-13. Not satisfied with that whopper, she stated "I saw it this morning." Leavitt or Bondi (or both) also claimed Garcia's a "leader" of MS-13.
If this wasn't disturbing enough, DOJ attorney Erez Reuveni and his supervisor have been placed on leave for failing to follow Bondi's requirement attorneys "zealously advocate for the United States."
Apparently not satisfied with his shameful vote in the AEA case, late this afternoon John Roberts stayed Judge Xinis's order requiring Garcia's return by midnight tonight. The gang Barrio 18 has threatened Garcia's life on numerous occasions, which is why he was (legally) in the US in the first place. By the time Roberts gets done wasting time, Garcia may be dead.
I had similar thoughts.....
5-4 decisions in which the majority has no interest in the question of open defiance of court orders raises two issues - both disturbing: 1. this court would rather deal with legal niceties than how courts will ever make this administration follow the Constitution and the laws and 2. why should a lower court bother with this defiance when this majority clearly does not have their back? So the Administration puts up "Screw you" to judges on social media and all of us who are concerned about losing our Republic know that they can get away with it.
Just as someone of the Christian faith can find a passage somewhere in the Bible to defend just about any view, it seems this Court picks and chooses bits and pieces of law that will prop up whatever ideologically-driven decision they wish to reach.
Justice Jackson's dissent echoed Prof. Vladeck's admonition about the majority 'burying their heads in the sand', pointing out that "more and more of our most significant rulings (are) taking place in the shadows of our emergency docket...leav(ing) less and less of a trace." Sure seems that the conservative majority on the Court have no intent on reversing their pattern.
I and some of my classmates in the first year of law school recognized that Justices and judges regularly do what you describe in your first paragraph.
In short, prison shopping! Our own Privy Council.
Disappointing SCOTUS. They number their days.
I still don't get it. ICE won't tell you where you're going so how would you file habeas corpus?
I need to go cry now. I just... No. This is horrifying.