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PaperclipPerfector  11d ago (text post)   31923 thread views

Culture War Roundup for the week of April 7, 2025

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How about some more immigration news? Just today the Supreme Court of the United States issued a per curiam opinion in Trump v. J. G. G., et al. This is the case about the two planes of individuals deported under the Alien Enemies Act. The ruling is something of a mixed bag. On the one hand, the court rules that the Plaintiffs can't sue under the Administrative Procedure Act and instead must file habeas petitions to get relief. On the other hand the court also rules that determinations of whether the AEA applies to an individual are subject to judicial review and individuals have to be given an opportunity to seek that review:

More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. 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.

The decision is technically 5-4 because Kagan, Sotomayor, Jackson, and Barrett would have left the TRO in place and allowed Plaintiffs to proceed under the APA rather than requiring habeas. All 9 agree that judicial review is available and that prospective deportees under the AEA must have the opportunity to seek it, the disagreement is about how. Whether detainees will be able to practically use that opportunity remains to be seen. Steve Vladeck, as always, has a good write up.

On thing missing in the court's ruling, though, is any mention of the ~270 individuals already deported under the act. Certainly without the kind of review the court orders today. The courts decision implies this was a violation of their Fifth Amendment rights but does not actually say anything directly about them. Can they file habeas petitions in the United States to be returned? If the government can get you out of the country is that it? There is some precedent (arising from the Guantanamo Bay detainees) that people held in a foreign country on behalf of the United States can still pursue relief in US courts. Maybe that will end up being the remedy.

We can also return to Abrego Garcia v. Noem. I made a post about it last week and quite a lot has happened since then, including today. Last Friday the judge in that case ordered:

1. Plaintiff's Motion (ECF No. 6), construed as one for preliminary injunctive relief, is GRANTED;

2. Defendants are hereby ORDERED to facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025;

The judge issued her opinion supporting the order on Sunday. The government appealed and a unanimous panel of the Fourth Circuit Court of Appeals denied the government's request for a stay. The circuit court's opinion pretty directly raises some of the concerns I mentioned in my post:

More importantly, the Government cannot be permitted to ignore the Fifth Amendment, deny due process of law, and remove anyone it wants, simply because it claims the victims of its lawlessness are members of a gang. Nor can the Government be permitted to disclaim any ability to return those it has wrongfully removed by citing their physical presence in a foreign jurisdiction. This is a slippery -- and dangerous -- constitutional slope. If due process is of no moment, what is stopping the Government from removing and refusing to return a lawful permanent resident or even a natural born citizen?

The government then appealed to the Supreme Court and Chief Justice Roberts granted an administrative stay.

The cases are not exactly the same. The Venezuelans in the J.G.G. case were at least arguably deported pursuant to a lawful authority. Even the government concedes Abrego Garcia's deportation was entirely unlawful. Still, it would be a surprise for there to be relief for the Venezuelan's deported (arguably) in violation of their Fifth Amendment rights but not for Abrego Garcia who certainly was.

These proceedings do little to assuage my concerns with the system. If you are a US citizen and get kidnapped to a prison in El Salvador and the remedy is "hire a US lawyer to file a habeas petition for you" that seems not great! Pretty bad!

If the US government actually abides by SCOTUS' order that means mass deportation via the AEA is likely dead. You're talking about individual cases in front of an Article 3 judge with all the appeals that entails for every individual you want to deport.

You're talking about individual cases in front of an Article 3 judge with all the appeals that entails for every individual you want to deport.

I don't think this is necessarily so. The opinion reinforces that "the detainees are entitled to notice and opportunity to be heard "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950)." -- which means that the Court is not addressing what process is due here.

The Court goes on to say "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" -- which I read to mean that the government can provide notice of intent to remove and it is on deportee to then seek relief. That's just about maximally stacking the procedural burden in favor of the government.

On thing missing in the court's ruling, though, is any mention of the ~270 individuals already deported under the act. Certainly without the kind of review the court orders today. The courts decision implies this was a violation of their Fifth Amendment rights but does not actually say anything directly about them. Can they file habeas petitions in the United States to be returned? If the government can get you out of the country is that it?

Redressability is a key part of standing. It's not just out of the country like in GITMO -- those were still individuals detained by agents of the US government to whom a remedy would apply.

The most a court could order here is that CBP would be required to admit them if they presented themselves at a border crossing. They can't order a foreign government to release or transport them. Even that, I'm not sure would be considered a remedy that would redress the harm, given that it's so speculative. EDIT: It was suggested below that the US might be paying for the continued detention abroad, in which case it is possible to order the US official that is doing so to stop. I'm not quite up to my standing doctrine on whether this now counts as a remedy.

The Court goes on to say "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" -- which I read to mean that the government can provide notice of intent to remove and it is on deportee to then seek relief. That's just about maximally stacking the procedural burden in favor of the government.

I agree the court was disturbingly vague. How long in advance must a prospective deportee be notified so they can "actually seek habeas relief?" A day? An hour? A minute? What about people already detained? I guess in that paragraph I was mostly thinking of people who do manage to file habeas petitions.

The most a court could order here is that CBP would be required to admit them if they presented themselves at a border crossing. They can't order a foreign government to release or transport them. Even that, I'm not sure would be considered a remedy that would redress the harm, given that it's so speculative. EDIT: It was suggested below that the US might be paying for the continued detention abroad, in which case it is possible to order the US official that is doing so to stop. I'm not quite up to my standing doctrine on whether this now counts as a remedy.

Vladeck has an article (of course) that talks about this in some detail. The short version is there is precedent for the US government working with foreign nations to return individuals who have been unlawfully removed. Both US citizens and not. He also cites a case about a US citizen who was detained by the government of Saudi Arabia, while in Saudi Arabia, at the behest of the behest of the US government. In that case the court found that if the detention was on behalf of the US then the court would have jurisdiction to order his return since the US had "constructive" custody of him.

I agree it's vague, but it is as deferential to the government while still maintaining that deportees get some due process in the form of judicial review. I really can't imagine any other result that's this favorable to the administration.

In that case the court found that if the detention was on behalf of the US then the court would have jurisdiction to order his return since the US had "constructive" custody of him.

We shall see.

Vladeck has an article (of course) that talks about this in some detail.

I greatly respect Vladeck, but I have serious issues with his analysis. My two major complaints is that he cites concerns that are, frankly, not proper or justiciable.

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.

I mean, we all know that. It's a fact. But the best application of APA vs Habeas here does not depend at all upon this fact, and Vladeck knows or ought to know it. It also wouldn't matter if the DC Circuit was full of Trump appointees and the 5th full of Biden ones.

This isn’t any old case; it’s the case in which the government has come the closest to outright defiance of a court order (something Chief Judge Boasberg is still in the middle of adjudicating). [...] Not two weeks later, here’s Roberts providing the decisive vote to hold that, in fact, the case shouldn’t have been before that judge (or that court) in the first place

Again, whether or not this belongs in the DCC or the 5th is completely independent of whether the government ordered a court order. That fact cannot enter into a jurisdictional question -- and it's just beneath him to suggest that it's relevant.

The remedy for contempt cannot possibly be "we rewrite or reframe jurisdictional law to punish the contemptuous litigant".

Even the government concedes Abrego Garcia's deportation was entirely unlawful.

Do they? AIUI, there was a hold on deporting him to El Salvador specifically, and for specific reasons, and that the law granting that authority had a clause allowing it to be waived for a significant change in circumstances. And his specific pitch was "You can't send me back there because this specific gang will torture me to apply pressure to my mother's business", and his mother no longer owns the business and Bukele deleted the gang.

It seemed more like "There was a paperwork mixup, but we can justify it if we have to".

At minimum, the previous order was not dissolved. It's fine to say that the facts underlying it had changed significantly and it could have been relitigated, but it clearly wasn't. The Court has reiterated rather often that those orders remains in effect until removed, regardless of changes in the underlying merits.

There is some precedent (arising from the Guantanamo Bay detainees) that people held in a foreign country on behalf of the United States can still pursue relief in US courts.

Wasn't the key fact in those cases the fact that the United States had physical command and control over the Guantanamo Bay Detention Center? It doesn't seem immediately applicable to the Salvadorian prison situation. Is there any precedent for the United States sending prisoners to foreign countries? That seems like the more interesting novelty to me.

Bukele has said that the US is paying El Salvador to hold the prisoners on an ongoing basis. If he is telling the truth, this looks awfully like "the seller would make minor changes on normal commercial terms if the buyer asked them to." In reality, it may also be "the seller can tell if the actual buyer (i.e. Trump, not America) actually wants the thing, and a request that is obviously made under coercion will be ignored"

There is a common asset protection strategy of putting your wealth in the name of a trust lawyer in an offshore jurisdiction. The legal arrangement is that the lawyer has broad discretion to manage your wealth in the interests of a long list of extended family members. The practical arrangement is that the lawyer will manage your wealth to your instructions unless you are acting under a court order in favour of your business creditors, your ex-wife, the parents of the kid you ran over while drunk, the IRS etc. The US courts typical response is to throw the clown in jail for contempt and tell the trust lawyer that his client would very much prefer not to be in jail, so send money now. Unfortunately the US courts can't jail the President for contempt.

Hmm, then I'll amend what I wrote above about redressability. If the US is paying to house this particular guy, then it is likely a remedy to order the US to stop paying.

This applies to the Venezuelan prisoners. Garcia is a Salvadoran citizen and is being imprisoned indefinitely in El Salvador without a trial on the word of one US confidential informant (who may or may not exist) that he's in MS-13.

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