Alito Gets Fragged In SCOTUS Order Protecting Detainees

Et tu, Kegstand?

Photo credit:Christopher Penler / Shutterstock.com

On Friday afternoon, the Supreme Court issued a stinging rebuke of the Trump administration’s immigration policy. Practically speaking, the order halts all Alien Enemies Act (AEA) deportations because the government has demonstrated that it will not comply with the Constitution’s due process requirement. But the justices also called out the government for deceiving the court by telling Judge James Boasberg in DC that DHS had no imminent plan to remove AEA detainees, even as those detainees had been gathered at a facility in Texas and were being loaded onto buses headed for the airport.

The order is per curiam, so we don’t know how the vote broke down or who authored it. (Andrew thinks Roberts, Liz thinks Sotomayor.) It’s remarkable, not just because it calls out Trump and his minions for being full of shit, but because it levels roughly the same criticism at one of their own. A full quarter of this order is spent reading Justice Alito for filth over his dissent, which was joined by Justice Thomas.

It’s a bit ironic, since the Court’s conservatives have largely moved in lockstep to protect Donald Trump. They were so desperate to shield the administration from the consequences of lying to Judge Boasberg and defying his order in J.G.G. v. Trump that they dummied up a rule that potential deportees must bring their claims in habeas, rather than under the Administrative Procedures Act. This was almost certainly intended as a fig leaf to provide the appearance of process while allowing the government to shove immigrants out the door almost as fast as Trump demands. It was also a bet that the administration could be shamed, rather than ordered, to act lawfully.

That was very stupid bet.

In the two months since, the Trump administration has lied to courts, defied court orders, shuffled detainees around the country to evade jurisdiction, publicly attacked judges, and loudly announced that they do not intend to comply with the judicial rulings.

District courts issued habeas relief in New York, Colorado, and the Southern and Western Districts of Texas barring deportations under the AEA. Another court in Pennsylvania allowed for AEA removal, but only with 21-days notice and a right to contest. In fact, the only judge who declined to issue relief was Judge James Hendrix, a Trump appointee in the Northern District of Texas, which is home to the Bluebonnet Detention Center.

There, as in J.G.G., immigration attorneys got wind of the government’s plan to secretly rendition immigrants to El Salvador on the weekend of April 16. Lawyers raced into court, but unlike Judge Boasberg, who issued an immediate TRO and scheduled a hearing that day, Judge Hendrix denied the request based on the government’s promise not to deport the two named plaintiffs. (It’s pretty clear that Judge Hendrix was trying to avoid asking the DOJ pointed questions about their rendition scheme the way Judge Boasberg did, with the attendant risk that he’d either be lied to or defied.)

On Sunday the 18th, as detainees were being loaded onto buses at Bluebonnet and told they were being deported to El Salvador, Judge Hendrix ignored a 12:34am emergency motion for an immediate TRO and a request twelve hours later at 12:48pm to rule by 1:30pm. Those requests included strong evidence that deportations were imminent and that the detainees had not been given notice that complied with the Supreme Court’s order in J.G.G.

Even an adverse ruling by Judge Hendrix would have given the plaintiffs something to appeal to the Fifth Circuit and Supreme Court. But at 3pm, with no order forthcoming, the plaintiffs appealed anyway, construing Judge Hendrix’s dithering as an effective denial. The Fifth Circuit failed to act either, claiming that it lacked jurisdiction to hear the petition because the trial judge hadn’t yet ruled and scolding the plaintiffs for daring to suggest that Judge Hendrix wasn’t working with maximum diligence.

At 1am on April 19, the Supreme Court leapt in, temporarily blocking AEA removals from the Northern District of Texas. It was a radical step, followed a day later by a furious dissent from Justice Alito, joined by Justice Thomas.

Since then, Judge Hendrix denied the motion to certify AEA detainees in the Northern District as a class.

On Friday, nearly a month after their initial temporary stay, SCOTUS reversed the Fifth Circuit’s jurisdictional ruling, noting that, by sitting on his hands despite mounting evidence that men were at that very moment being rounded up and renditioned to a gulag, Judge Hendrix effectively denied the motion for an emergency TRO. The justices scoffed of the Fifth Circuit’s suggestion that the plaintiffs gave Judge Hendrix “only 42 minutes to act,” noting that clock started at 12:34am on the 18th, not 12:48pm the next day. And they rubbished the government’s position that a few perfunctory paragraphs in English, handed to detainees less than 24 hours before shipping them to a gulag, complied with due process.

“The Government does not contest before this Court the applicants’ description of the notice afforded to AEA detainees in the Northern District of Texas, nor the assertion that the Government was poised to carry out removals imminently,” they wrote, adding that “Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.”

But they saved their greatest scorn for Alito.