EMERGENCY! EMERGENCY!

Supreme Court twice in one day gives the Administration emergency assistance, but the bottom line might be palatable.

Photo by Ian Hutchinson on Unsplash

Supreme Court twice in one day gives the Administration emergency assistance, but the bottom line might be palatable.

There's a lot to try to figure out about the U.S. Supreme Court’s intervention in favor of the Trump administration in two different high-profile cases today. In brief, there's a lot to like, a lot to fear, and a lot of uncertainty that will only be clarified in the weeks ahead.

Let’s start with the Supreme Court’s 5-4 per curiam opinion in Trump v. J.G.G., vacating the temporary restraining orders that Chief Judge Jeb Boasberg had entered in the Alien Enemies Act (AEA) case.
The most important aspect of the opinion was heartening, and dodged a cannonball: the Court made clear that review is available to test the identity of the deportee and the Administration’s (wacky) interpretation of the AEA.

That headline aside, which would have been stunning if the Court had gone the other way, I think the opinion was overall disappointing for a few reasons.

First, it provided a vivid reminder of the razor-thin margin on which our democracy may stand or fall. Notwithstanding some shifting alliances in the U.S. Supreme Court, the ultimate repudiation of Trump at the critical moment will likely depend on the decision of Chief Justice Roberts, who cast the fifth vote to provide the government emergency relief Monday evening. I've explained before my reasons for thinking that Roberts is essentially two different judges—the pro-Republican judge and the pro-Supreme Court judge—depending on how he sees the case. Today’s pivotal vote for the administration is something of a dry run for what could be a catastrophic and pivotal vote down the line.

Second, there was a certain sterility to the opinion that gave no indication of the bedrock gravity of the case, in which the administration has spirited away hundreds of Venezuelan nationals, at least one in error, under a very tenuous interpretation of the AEA. The reasoning is wholly procedural and the prose is wholly bureaucratic, as if the Court were interpreting some obscure federal regulation. In other words, there was not even a recognition of the overall stakes of the case and its integral relationship to a series of executive orders that have not simply aggrandized the president but also victimized countless residents.

The contrast was stark with the dissenting opinions from both Justice Sotomayor (with whom Justices Kagan, Jackson, and, yes, Barrett joined as to the most important portions) and Justice Jackson. Sotomayor highlighted the harrowing facts and the fundamental issues of justice, and even decency, that they present. She takes the majority to task for not even mentioning “the grave harm Plaintiffs will face if they are erroneously removed to El Salvador.” And she further chastises the Court for “reward[ing] the Government's efforts to erode the rule of law.” Her opinion is about five times as long as the per curiam’s bland recitation.

Justice Jackson joined Sotomayor’s dissent in full and adds her own pointed criticisms of the ultimate horror latent in the case: “The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning.”

For the second time in recent days, Jackson questioned the Court’s willingness to hop to when the Administration cries “emergency.” The emergency setting necessarily entails less consideration and thought; moreover, Jackson writes, when the Court deviates from the normal process of full briefing followed by oral argument and internal deliberation, “the risk of error always substantially increases.”

This suspicion of emergency process has become a strong fault line in the Court. Kagan too has written about it of late. But so far, the five men on the Court (the 5-4 decision broke down by gender) have expressed no concern.

Third, the Court pulled the rug out from under Boasberg, whom it knows very well from the record and the media. Boasberg has exhibited patience and prudence in confronting a series of callous, evasive, and misleading claims from the government. The decision can't help but be taken as at least a soft vote of no confidence in a judge who more than deserves the higher courts to have his back. (The D.C. Circuit, in fact, did provide a strong shot in the arm to Boasberg when it denied the government’s motion to stay the orders.)

Fourth, as both dissents document, the Court has become way too promiscuous in its use of emergency procedures—as the Administration continually urges and abuses—to determine important questions that it easily could have addressed after full briefing, oral argument, and intra-court deliberation. Here, Boasberg’s TRO was due to expire in a few days. There is no persuasive reason the Court couldn’t have waited for his ruling and considered the issue in the normal course.

Finally, while the per curiam in no way forces Boasberg to stand down on his separate, and totally righteous, effort to get to the bottom of whether the Administration knowingly violated his orders in the initial hearing on March 15, the reversal could well take the wind out of his sails and arm the Administration with additional arguments for resistance (additional, that is, to the series of inconsistent and fatuous arguments it has offered thus far—most recently the State Secrets Privilege, which it then had to back away from).

How to Lose Judges and Alienate People

ON THE OTHER HAND, as I say, the most important feature of the opinion is that all nine members of the Supreme Court agreed that deportees have a right to notice from the Administration and an opportunity to bring a habeas corpus action to contest the attempted deportation. More, a fair reading of the opinion suggests they agree that the challenges can encompass not simply a claim that the government got the wrong guy—the claimant isn’t part of Tren de Aragua—but also Trump’s far-fetched attempt to apply the AEA, which requires at a minimum a predatory incursion by a foreign country, to the few hundred gang members supposedly loose in the country.

That portends an emphatic rejection of the Administration’s most brazen and dangerous position: that Trump’s judgment as to what falls within the AEA is unreviewable. Any fair reading of the AEA should strike this interpretation down and invalidate Trump’s entire misadventure with the wartime statute. Had the Court gone the other way here, it would have been a giant lift for Trump in his efforts to use the pretext of national security to work his will in manifold ways across government and civil society. So that’s a huge collective sigh of relief.

But it raises another potential rub with the opinion. Habeas corpus petitions have to be brought in the district where the petitioner is in custody. Recall that the United States rounded up all the 200+ Venezuelan nationals and transported them to Harlingen, Texas, before the planes took off for El Salvador and the notorious CECOT Prison. If, going forward, the government can repeat the same maneuver, it will consign the deportees to bringing habeas actions in the Southern District of Texas and, even worse, appeals in the Fifth Circuit—the court of appeals that is even more conservatively extreme than the Supreme Court.

As I see it, there's an argument that the government has to provide notice, and therefore an opportunity for a habeas action, before it rounds up any deportees and whisks them away to Harlingen. That would mean that habeas actions would be brought all over the country. But that remains an unresolved issue, and the Administration will surely argue it can first assemble the potential deportees in its preferred venue of Harlingen, 30 miles from the Gulf of Mexico.

Better yet would be if the case of Kilmar Abrego Garcia proceeds first in the District of Maryland before Judge Paula Xinis. Xinis is almost certain to rule correctly and be affirmed by the court of appeals.

This was the second case in which the Supreme Court, or more precisely Roberts again, parachuted in on Monday to do the Trump Administration a solid. Xinis had ruled that the government had to work to return Abrego Garcia to the United States by Monday evening. In a posture as ugly as it is untenable, the government, which concedes it “disappeared” him in error, has been contending that there is no power to bring him back.

And as with the Boasberg case, the court of appeals rebuffed the Administration’s plea for emergency relief. The vote was unanimous, including from a highly respected conservative judge, J. Harvie Wilkinson.

This error from the Administration has been a primer in different sorts of stays from the Supreme Court. This one is the most benign: it’s an “administrative” stay that Roberts entered to permit the Court as a whole to consider the argument for emergency relief.

It does get the Administration off the hook for producing Abrego Garcia by yesterday at midnight, and one senses that they had taken no steps in that direction notwithstanding the Xinis order. In that respect, Roberts spared them distinct embarrassment and a likely scolding by Xinis.

If the Court, likely by the same 5-4 vote, permits the Administration to just walk away from the ultimate constitutional nightmare for which it is solely responsible, that would be an abomination matched only by the notorious immunity decision. It also would be a harbinger of more opinions to come green-lighting Trump’s authoritarian agenda. And it would give credence to the worst suspicions raised by the J.G.G. opinion.

But we're not there yet. I see it as likely that the Court, in any event, will trim back on Xinis’s order and permit the Administration to comply at something like “all deliberate speed.” But notwithstanding that all hope seems to rest on the thin and fragile reed of the Chief Justice—a distressing state of affairs in and of itself—I can’t fathom that he will countenance the Administration’s cynical effort to perpetrate an ultimate injustice.

Talk to you later.