SCOTUS: Rendition Is Fine, Actually

CECOT is the new Gitmo

On Monday night, just hours before the Trump administration was due in court to defend its practice of renditioning migrants to a Salvadoran gulag, the Supreme Court leapt in to save the president by inventing new law. Again.

Before Chief Judge James Boasberg could even hear the plaintiffs motion for a preliminary injunction in J.G.G. v. Trump, five justices vacated his temporary restraining order. This will almost certainly moot the case, potentially allowing the administration to deport any one, at any time, for any reason.

The opinion tries very hard to fashion itself as simply substituting one kind of relief for another. Alien Enemies Act (AEA) “detainees must receive notice after the date of this order that they are subject to removal under the Act,” the author of the unsigned per curiam opinion writes (in Chief Justice Roberts’s signature wheedling style). “The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”

That was not the question before the Supreme Court. Instead, it was whether plaintiffs could challenge the administration’s policy that it can declare an imaginary war and then summarily deport anyone by labeling them an (imaginary) foot soldier. That claim rests on the Administrative Procedure Act’s guarantee that any “person suffering legal wrong” or or adversely affected “because of agency action” is entitled to their day in court to challenge it.

That’s the relief plaintiffs got from Judge Boasberg, who barred the government from simply declaring that migrants are members of Tren de Aragua and shipping them off to El Salvador. And that’s the relief the Supreme Court took away, blocking immigrants slated for deportation from challenging actions by the Departments of State and Homeland Security under the APA. Instead those people will now be forced to file habeas corpus claims for wrongful detention.

Worse, because habeas petitions must be filed where the plaintiff is being held, the ruling effectively allows the government to select the venue by snatching up immigrants and moving them around the country, particularly to holding facilities in Louisiana and Texas that just so happen to fall under the jurisdiction of the notoriously right-wing Fifth Circuit.

There is simply no other way to read what the Supreme Court did than as a naked effort to derail a looming showdown between the Trump administration and Judge Boasberg while simultaneously making it much harder for migrants to challenge deportation orders.