Last
night,
all
nine
members
of
the
Supreme
Court
assured
us
that
the
Trump
administration
can’t
send
masked
secret
police
to
sweep
up
everyone
with
an
“I
HEART
MOM”
tattoo
and
spirit
them
away
to
El
Salvadoran
slave
gulags
without
due
process.
Fans
of
law,
order,
or
basic
human
decency
might
take
this
as
good
news.
But
what
does
due
process
mean
in
a
world
where
the
administration
secretly
disappears
people,
ships
them
overseas
before
even
publishing
an
executive
order
authorizing
it,
and
then
tells
the
courts,
“Oops,
too
late!”?
The
majority
not
only
doesn’t
answer
that
question,
it
frankly
doesn’t
want
to
hear
about
it,
thank
you
very
much!
The
unsigned
majority
opinion
—
either
because
no
one
wanted
their
name
on
this
mess
or
the
five
couldn’t
agree
on
who
should
get
credit
for
signing
functional
death
warrants
for
unsuspecting
gay
barbers
—
handwaves
the
record
as
it
exists
and
lifted
the
temporary
restraining
orders
blocking
the
government
from
sending
more
people
to
foreign
hell
camp.
The
move
came
a
day
before
a
scheduled
lower
court
hearing
that
could
have
even
further
developed
a
record
of
government
abuses
—
a
hearing
the
Supreme
Court
helpfully
mooted
for
the
administration.
Instead,
the
majority
ramrodded
a
shadow
docket
opinion
without
full
briefing
or
argument
on
the
strength
of
the
federal
government
pinky
swearing
that
it
will
afford
everyone
involved
due
process.
Someone
needs
to
let
Yale
Law’s
JD
Vance
know!
The
detainees’
rights
against
summary
removal,
however,
are
not
currently
in
dispute.
The
Government
expressly
agrees
that
“TdA
members
subject
to
removal
under
the
Alien
Enemies
Act
get
judicial
review.”
Except,
you
know,
the
people
they
already
shipped
to
El
Salvador
while
telling
the
courts
that
it
doesn’t
have
to
follow
laws
once
its
planes
cross
into
the
situationally
named
Gulf
of
“America.”
A
claim
it
made
in
conjunction
with
telling
the
court
that
it
isn’t
obligated
to
follow
oral
orders
and
that
the
government
is
incapable
of
recalling
a
detainee
that
they
admit
was
wrongfully
sent
to
El
Salvador
even
though
the
United
States
is
paying
El
Salvador
to
hold
that
person.
Taken
together
—
or,
frankly,
separately
—
these
might
undermine
the
credibility
of
the
government’s
commitment
to
the
rights
it
“expressly
agrees”
exist.
Which
is
why
the
conservative
majority
moved
so
quickly
to
head
off
further
proceedings
that
might
unveil
more
damning
indicts.
The
administration
bases
its
authority
on
the
Alien
Enemies
Act
of
1798,
a
wartime
statute
invoked
during
the
War
of
1812,
WWI,
and
WWII.
Trump
dusted
it
off
in
peacetime
to
declare
a
Venezuelan
street
gang
a
“foreign
nation”
conducting
an
“invasion.”
Is
this
supported
by
the
text
of
the
statute?
Not
really.
But
the
majority
suggests
that
it’s
unreviewable
whether
the
administration
whips
it
out
in
peacetime,
or
imposes
it
against
a
decidedly
non-governmental
criminal
gang,
or
expands
its
deportation
power
to
include
selling
people
to
another
country’s
Squid
Game
theme
park.
Note
that
the
Alien
Enemies
Act
was
never
used
to
send
a
generation
of
real-life
Vito
Corleones
back
to
Sicily
as
an
“invading”
force,
even
though
the
United
States
actually
went
to
war
with
Italy
along
the
way.
If
we’re
letting
the
president
declare
imaginary
wars
to
round
up
immigrants,
can
we
at
least
bring
back
the
War
on
Poverty
and
send
off
Elon?
Extending
it
to
made
up,
undeclared
wars
represents
a
massive
executive
overreach
and
—
unlike
the
student
loan
forgiveness
plan
these
same
justices
bellyached
about
—
a
real
and
significant
breach
of
the
separation
of
powers.
But
the
majority
decides
that
the
decision
to
invoke
a
statute
giving
the
president
sweeping
secret
police
powers
is
unreviewable.
Instead,
the
majority
envisions
“due
process”
in
the
form
of
individualized
habeas
petitions
that
every
potential
deportee
must
timely
file
in
the
jurisdiction
where
they
end
up
once
ICE
pulls
the
hood
off.
Regardless
of
whether
the
detainees
formally
request
release
from
confinement,
because
their
claims
for
relief
“‘necessarily
imply
the
invalidity’
”
of
their
confinement
and
removal
under
the
AEA,
their
claims
fall
within
the
“core”
of
the
writ
of
habeas
corpus
and
thus
must
be
brought
in
habeas.
“Must”
does
a
lot
of
warrantless
lifting
in
this
passage.
As
Professor
Steve
Vladeck
notes,
“although
habeas
is a vehicle
through
which
to
challenge
the
government’s
use
of
the
Alien
Enemy
Act,
it’s
not
(and
never
has
been)
the
exclusive
vehicle
for
doing
so.
But
here
we
are.”
But
here
we
are,
indeed.
Legal
historians
may
well
look
back
on
this
period
in
as
the
“But
Here
We
Are”
epoch,
where
opinion
after
opinion
comes
down
casually
eliding
obvious
points
with
a
proverbial
shrug.
Few
carry
fully
realized
habeas
petitions
in
their
pockets
and
most
of
those
targeted
by
the
government
won’t
have
the
luxury
of
legal
counsel
able
to
swoop
in
to
protect
them.
It
is,
quite
literally,
a
divide
and
conquer
strategy
that
robs
deportees
of
the
right
to
question
the
whole
basis
of
the
administration’s
authority
to
go
after
ANY
of
these
people
and
substitutes
it
with
a
right
for
each
individual
to
challenge
how
the
law
applies
to
them
specifically…
within
a
limited,
invisible
timeframe.
It’s
a
particularly
galling
requirement
when
the
government
already
confessed
that
they
don’t
have
any
evidence
against
a
bunch
of
these
people!
In
briefing
below,
the
government
argued
that
“the
lack
of
specific
information
about
each
individual
actually
highlights
the
risk
they
pose,”
claiming
that
the
Alien
Enemies
Act
allows
targeting
threatening
groups
and
doesn’t
require
justifying
removals
person
by
person.
And
while
the
Supreme
Court
does
nothing
to
disturb
that
logic-by-stereotype,
it
does
insist
that
any
challenge
to
this
sweeping
dragnet
must
be
made
individually.
This
imbalance
makes
no
sense…
in
the
“core”
habeas
world,
one
side
says
“we’re
holding
this
person
lawfully”
and
the
other
says
“no
you’re
not.”
Under
the
framework
blessed
by
this
opinion
the
AEA
detainee
says
“here
are
individual
reasons
to
let
me
go”
and
the
government
is
allowed
—
without
review
—
to
say
“under
this
law
we
don’t
need
any
individualized
justifications.”
Vladeck
notes
another
practical
reason
why
the
Court
knows
this
is
a
false
offer:
Justice
Sotomayor’s
dissent
raises
the
specter
of
individuals
being
held
all
over
the
country,
but
I
think
it’s
more
likely
most
of
these
cases
end
up
in
the
Southern
District
of
Texas—and,
thus,
in
the
Fifth
Circuit.
(Much
like
the Department
of
Education ruling
is
going
to
likely
mean
that
at
least
some
of
the
funding
cutoff
cases
end
up
in
the
Court
of
Federal
Claims.)I
don’t
think
I’m
speaking
out
of
school
when
I
suggest
that
there
is
no
court
in
the
country more
likely to
side
with
the
Trump
administration
on
everything
from
whether
we’re
under
an
“invasion”
from
Tren
de
Aragua
to
the
amount
of
process
to
which
alleged
members
of
TdA
are
entitled
than
the
New
Orleans-based
federal
appeals
court.
Trading
APA
review
for
habeas,
even
if
the
remedies
were otherwise commensurate,
is
trading
the
ideologically
diverse
(and
national
security-experienced)
D.C.
federal
courts
for
the
most
right-leaning
federal
courts
in
the
country.
And
the
justices
know
that,
too.
Justice
Sotomayor
and
Vladeck
both
know
what
that
means:
this
isn’t
about
core
habeas
principles
—
it’s
about
forum
shopping
by
force.
And
if
the
ability
to
functionally
question
the
Enemy
Aliens
Act
either
as
invoked
or
as
applied
to
an
individual
is
this
compromised,
it
means
there’s
really
no
protection
for
anyone
under
the
opinion
the
majority
cobbled
together.
In
other
words:
Not
unlike
the
Trump
immunity
decision
that
glossed
over
the
fact
that
Trump’s
lawyers
were
openly
admitting
that
the
opinion
they
would
ultimately
receive
was
a
greenlight
to
use
SEAL
Team
6
to
whack
political
rivals,
Chief
Justice
Roberts
again
nukes
constitutional
guardrails
while
reassuring
us
that
“don’t
worry,
he
probably
won’t.”
My
man
is
getting
awfully
comfortable
with
his
bargain
whore
status.
Justice
Sotomayor,
however,
does
not
live
in
fantasy
land:
The
implication
of
the
Government’s
position
is
that
not
only
noncitizens
but
also
United
States
citizens
could
be
taken
off
the
streets,
forced
onto
planes,
and
confined
to
foreign
prisons
with
no
opportunity
for
redress
if
judicial
review
is
denied
unlawfully
before
removal.
History
is
no
stranger
to
such
lawless
regimes,
but
this
Nation’s
system
of
laws
is
designed
to
prevent,
not
enable,
their
rise.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
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college
sports
news.
Joe
also
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Managing
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