The court was unanimous that challenges could be brought, but the limit — only habeas claims can be brought — raises significant questions and concerns.
I’m wondering about the due process for these individuals. They may have had due process to be deported and received a final order of removal, but that wouldn’t give the administration permission to send to a torture prison in another country?! I don’t understand why even this old law would allow sending to a foreign prison, especially a prison not in our or their home country’s jurisdiction?
The Roberts Court has made a practice of putting its head in the sand - or some other dark orifice. Plaintiffs could be dead or disappeared in El Salvador, or any other foreign hellhole, before any court gets around to addressing it. It reminds me of the tactic on abortion - no standing unless you're pregnant, and then they simply fail to act in the case until such time as you're no longer pregnant (or possibly even alive) at which point you're out of standing and s*** out of luck. It's not justice if having privilege is a prerequisite to getting it.
Does this mean that moving forward potential deportees will "see their day in court" before being summarily shipped off to the CECOT death prison, and that would have to happen in Texas, assuming they're held there?
Got it. And, as they only allow habeas claims, does that set up future court battles on the constitutionality of the administration's use of the Alien Enemies Act to deport people?
SCOTUS (and Chief Judge Boasberg) seem to be missing the forest for the trees. This is not about mere administrative law or mere deportation. This is about imprisonment--more specifically, arbitrary imprisonment (and more specifically) in a foreign prison. This is about tyranny and usurpations of power (by POTUS with rogue SCOTUS justices as co-conspirators).
As Alexander Hamilton emphasized in The Federalist No. 84:
"the practice of arbitrary imprisonments" has "been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to [arbitrary imprisonments], are well worthy of recital: "To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A more dangerous engine of arbitrary government."
The Fifth Amendment emphasized that no person can be deprived of any liberty until after having been afforded all due process of law. There is no federal common law of crimes. Article I emphasized that only Congress can make laws that justify putting people in prison. Article III and Amendments V and VI emphasized that people cannot be put in prison without, first, a grand jury, and second, a speedy and public trial by a jury. Amendment VIII emphasized people cannot be kept in prison with "excessive bail," which is pretty much what SCOTUS justices just did.
I am, along with everyone else, having trouble wrapping my head around this decision. There seems to be an underlying ASSUMPTION that the AEA is actually properly in play, even though the court says it isn't ruling on that. If the only place one can challenge this is by showing that you yourself don't happen to be a member of the class, do you also have standing to challenge the very application of a law that the court seems to feel is "largely" not subject to judicial review? Habeas is supposed to be a challenge to confinement under "color of law." What if that law is wrongly colored?
EDIT: The court on this point does say: "Although judicial review under the AEA is limited, we have held that an 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 alien enemy fourteen years of age or older"
More broadly, can ICE grab you off the streets of Boston and move you to Amarillo TX to establish the venue it wants BEFORE it gives you notice that the reason is going to be use of the AEA? Or will this actually give someone peacefully living here either with a visa or undocumented living here a bit more chance to be heard? This is a part of ICE raids I haven't really understood. If your case is already in line to be heard by the immigration courts, can ICE hold you in some other jurisdiction to get a "favorable" venue?
The thing that bugs me most about this whole thing is how any court is putting up with the idea that even IF this were a real declared war, the president can simply ship non-citizens off to a PRISON when their only "crime" is being within the class of folks covered by the Act. I GET that the Japanese confinement camps were OK legally for actual Japanese nationals, but they weren't technically prisons. Could FDR have decided to send them all to Alcatraz?
I’m wondering about the due process for these individuals. They may have had due process to be deported and received a final order of removal, but that wouldn’t give the administration permission to send to a torture prison in another country?! I don’t understand why even this old law would allow sending to a foreign prison, especially a prison not in our or their home country’s jurisdiction?
The Roberts Court has made a practice of putting its head in the sand - or some other dark orifice. Plaintiffs could be dead or disappeared in El Salvador, or any other foreign hellhole, before any court gets around to addressing it. It reminds me of the tactic on abortion - no standing unless you're pregnant, and then they simply fail to act in the case until such time as you're no longer pregnant (or possibly even alive) at which point you're out of standing and s*** out of luck. It's not justice if having privilege is a prerequisite to getting it.
Thank you for explaining this Chris.
Does this mean that moving forward potential deportees will "see their day in court" before being summarily shipped off to the CECOT death prison, and that would have to happen in Texas, assuming they're held there?
They should, yes.
Got it. And, as they only allow habeas claims, does that set up future court battles on the constitutionality of the administration's use of the Alien Enemies Act to deport people?
Yes, as is detailed in the piece.
Thank you. I just needed it spelled out.
While the named plaintiffs may have been in Texas when they were disappeared, they are no longer there. How does jurisdiction lie in Texas?
SCOTUS (and Chief Judge Boasberg) seem to be missing the forest for the trees. This is not about mere administrative law or mere deportation. This is about imprisonment--more specifically, arbitrary imprisonment (and more specifically) in a foreign prison. This is about tyranny and usurpations of power (by POTUS with rogue SCOTUS justices as co-conspirators).
As Alexander Hamilton emphasized in The Federalist No. 84:
"the practice of arbitrary imprisonments" has "been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to [arbitrary imprisonments], are well worthy of recital: "To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A more dangerous engine of arbitrary government."
The Fifth Amendment emphasized that no person can be deprived of any liberty until after having been afforded all due process of law. There is no federal common law of crimes. Article I emphasized that only Congress can make laws that justify putting people in prison. Article III and Amendments V and VI emphasized that people cannot be put in prison without, first, a grand jury, and second, a speedy and public trial by a jury. Amendment VIII emphasized people cannot be kept in prison with "excessive bail," which is pretty much what SCOTUS justices just did.
I am, along with everyone else, having trouble wrapping my head around this decision. There seems to be an underlying ASSUMPTION that the AEA is actually properly in play, even though the court says it isn't ruling on that. If the only place one can challenge this is by showing that you yourself don't happen to be a member of the class, do you also have standing to challenge the very application of a law that the court seems to feel is "largely" not subject to judicial review? Habeas is supposed to be a challenge to confinement under "color of law." What if that law is wrongly colored?
EDIT: The court on this point does say: "Although judicial review under the AEA is limited, we have held that an 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 alien enemy fourteen years of age or older"
More broadly, can ICE grab you off the streets of Boston and move you to Amarillo TX to establish the venue it wants BEFORE it gives you notice that the reason is going to be use of the AEA? Or will this actually give someone peacefully living here either with a visa or undocumented living here a bit more chance to be heard? This is a part of ICE raids I haven't really understood. If your case is already in line to be heard by the immigration courts, can ICE hold you in some other jurisdiction to get a "favorable" venue?
The thing that bugs me most about this whole thing is how any court is putting up with the idea that even IF this were a real declared war, the president can simply ship non-citizens off to a PRISON when their only "crime" is being within the class of folks covered by the Act. I GET that the Japanese confinement camps were OK legally for actual Japanese nationals, but they weren't technically prisons. Could FDR have decided to send them all to Alcatraz?