Read the Supreme Court rulings on due process for immigrants — before the White House ignores it again
The Supreme Court ruled in recent cases that anyone can have their day in court before being deported. The precedent was set in 1903. Yesterday the White House may have violated it again.
Today I’d really like you to open up one of the Supreme Court rulings that I’ve linked to in my post below and give it a read. If that’s something you haven’t done before, I think you’ll appreciate in this moment seeing that the law is, well, real.
This post is about recent court challenges to Trump Administration deportations that have reached the Supreme Court. You’ve probably read about them in the news. I hope I can fill in some details and give you some links to read the law for yourself and those rulings.
“Oopsie” to a court order, Trump Administration says
J.G.G. v. Trump is a case about the deportation of Venezuelan nationals purported to be members of the Tren de Aragua gang. This is the case in which a district court judge ordered planes removing the Venezuelans to turn around mid-flight. The planes didn’t and took the Venezuelans to El Salvador’s Center for Terrorism Confinement (CECOT), a prison. U.S. Secretary of State Marco Rubio reposted “Oopsie” on social media:
The Alien Enemies Act (50 U.S.C. 21) gives the President the power to apprehend and remove non-citizens aged 14 or older during either a war declared by Congress or “any invasion or predatory incursion . . . by any foreign nation or government.” President Trump declared Tren de Aragua to be an “invasion or predatory incursion … at the direction … of the Maduro regime in Venezuela” in Proclamation No. 10903 on March 14.
Lawyers for the Venezuelans argued they should have a chance in court before they are removed from the country.
The Supreme Court agreed in a ruling on April 7:
[A]n individual subject to detention and removal under that statute is entitled to judicial review as to questions of interpretation and constitutionality of the Act as well as whether he or she is in fact an alien enemy fourteen years of age or older. . . . It is well established that the Fifth Amendment entitles aliens to due process of law in the context of removal proceedings.
(This quote is on page 3. I again encourage you to read the opinion for yourself at this link.)
The Trump Administration had not waded into some new grey area of law. At “well established,” the Supreme Court cited back to a 1903 decision affirming immigrants’ right under the Constitution to due process before deportation. This is not a new concept.
It may very well be that the individuals were members of Tren de Aragua. It may very well be that they are “alien enemies.” Or maybe neither. A declassified memo found they weren’t coordinating with Venezuela as the Trump Administration claimed. The Trump Administration also hasn’t said who it’s deported to CECOT, and the Venezuelans’ lawyer in El Salvador has been arrested and disappeared, so we may never know.
This isn’t just about Tren de Aragua. Due process is what prevents you from being removed in a miscarriage of the law. Maybe you’re in the wrong place at the wrong time and you get caught up in an immigration raid. You can’t prove your innocence or your citizenship if a court isn’t permitted to hear your case. Due process is how you get released. Let that sink in.
“[A]ll nine Members of the Court agree”
Most Supreme Court decisions are split between the justices, with a majority of the justices’ determining the decision. I always like to read the “dissenting” opinions where the justices on the minority side give their argument. You can get a sense of the strength of the ruling by reading the opposing side.
In this case, 4 of the 9 justices dissented, beginning on page 6. But in this unusual dissent, which included Trump-appointee Justice Barrett, the justices agreed on the main point, writing:
To the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court
Don’t worry if you don’t know what “habeas relief” means. Neither did Homeland Security Secretary Kristi Noem in a hearing today. Here’s a clip where she gets it completely backwards. Sen. Hassan correctly explains that “habeas corpus” is the “foundational right” that ensures the government can’t “arrest people including American citizens and hold them indefinitely for no reason.” Having the opportunity to challenge the reason for detention, prior to deportation, is the crux of the case.
(I added red strikeout to the screenshot because I don’t want anyone reading this post so fast they learn the wrong thing.)
Trump-appointee Justice Kavanaugh added to the ruling:
[A]ll nine Members of the Court agree that judicial review is available. The only question is where that judicial review should occur.
The ruling sent the case to start over in a different court, and on different grounds, leaving the merits of the deportation to come later, but with the clearest possible message: Everyone gets their day in court before being removed from the country. Well, if the law is followed.
President Trump said, “We cannot give everyone a trial,” in a social media statement on April 21 in defiance of the Supreme Court’s decision.
The case did start over, in United States District Court for the Northern District of Texas, in W.M.M. v. Trump. The Supreme Court ruled on Friday, May 16 that additional detainees had not been given a fair shot at the Fifth Amendment’s due process rights:
[N]otice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster. . . . [W]e decide today only that the detainees are entitled to more notice than was given on April 18 . . .
The case is back in the lower courts, which is not unusual.
This afternoon a new case has begun over Burmese and Myanmar migrants who were deported possibly overnight to Myanmar and South Sudan seemingly without the notice the Supreme Court so clearly said was required just a few days ago.
An “administrative error” strands deported man in terror prison
Another case, Abrego Garcia v. Noem, is over the deportation of alleged MS-13 gang member Kilmar Armando Abrego Garcia also to the “terrorism” prison CECOT in El Salvador. This is the case where the Trump Administration admitted that Garcia’s deportation was an “administrative error”: He may very well be deportable under the law, but perhaps not to his home country El Salvador where an immigration judge had previously ruled he would face danger.
On April 10, the Supreme Court directed the Trump Administration to try to undo its admitted error. Here’s the link — I hope you read it — and the key part:
The [lower court] order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.
The ruling had no dissenting justices.
“Facilitate” is pretty vague. Lots could be considered “facilitating” Garcia’s release. The White House has not facilitated his return, hasn’t even claimed it tried, and in court has not said why.
On April 15, Vice President Vance, feigning ignorance, asked, “Are you proposing that we invade El Salvador?” Simply asking for Garcia’s return would be a start. Or stopping payments to El Salvador to detain him. On April 18, the White House said mockingly in a tweet that Garcia is “Never Coming Back,” making its position pretty clear that the Trump Administration doesn’t plan to comply with the order.
For more, see Steve Vladeck’s The State of Play in the Abrego Garcia Case. Vladeck is a law professor who explains ongoing litigation exceptionally well.
A number of other cases are going through lower courts similar to these, and challenges to other Trump Administration actions are before the Supreme Court as well.
The legal issues involved in these cases are quite complicated, and I, who is not a lawyer, may have inadvertently cut a few corners trying to make this make sense. Hopefully I got it close enough. For expert analysis, see the link to Steve Vladeck above and Chris Geidner’s Law Dork newsletter is also great.