Bulwark Takes - SCOTUS Delivers Gut Punch to Trump’s Due Process Fantasy

Episode Date: April 8, 2025

Sam Stein and Ryan Goodman discuss the Supreme Court ruling on Trump’s use of the Alien Enemies Act and its implications for due process rights.

Hey guys, it's me, Sam Stein, Managing Editor at The Bullwark. I'm here with Ryan Goodman, our friend from Just Security. We are going to be talking about a Supreme Court decision that dropped tonight, tonight being Monday, April 7th, right before the big basketball game. Thanks, SCOTUS. Before we get to that, Ryan, thank you for joining us, and thank you guys for watching us. Subscribe to our feed.

We really appreciate it. All right, so Ryan, this case had to deal with the use of the Aliens Enemies Act to deport Venezuelan migrants who were being detained. Highly controversial because what happened was a couple of weeks ago with almost no warning, in fact, maybe some subterfuge, the administration put about 300 migrants on a plane, brought them to El Salvador, and then kind of messed around with the judge and were not being very forthcoming about the circumstances. And they may have, in fact, violated the judge's decree that they don't do it. Subsequently, it's turned out that in all likelihood, a couple of

these migrants at least were wrongfully sent there. We know, in fact, one was definitely wrongfully sent there because the government admitted it. The Supreme Court didn't rule on that specific case, but they did rule on a narrow issue of the Aliens Enemies Act. Give us the 30,000 foot ruling summary, and then I'm going to pepper you some questions. Sure. thousand foot summary is one the supreme court uh extinguished the district court judge's order by saying essentially this is the wrong place to bring the lawsuit they should have brought it as a habeas petition meaning for somebody who's being held in custody where that person is held in custody in that location which just so happens to to be Texas. A little more hostile. A little hostile and a little bit of an explanation as to why the government brought all of these

people from different parts of the country to Texas to then fly them out, because that would be a very hospitable jurisdiction for the government, the most conservative jurisdiction of any of the jurisdictions that are out there. So the Supreme Court just basically said the district court was wrong. This should have initially been brought in Texas. The only other piece that I would mention at the 30,000 foot level that's super important for people not to lose sight of is that the Supreme Court does give a back of the hand to one of the government's main arguments. In the DC.C. Court of Appeals oral argument, lo and behold, the Department of Justice lawyers said, yes, people have habeas rights. They also wanted it

in Texas, but we need to give them no notice and no time to pursue their habeas petition. We could just fly them out of the country without even warning them in advance. And the Supreme Court today says, no, they get due process. And that includes notice and a full opportunity to realize their habeas rights. Right. And that seems, I know the headlines are that the administration won this case. And in fact, there's a lot of crowing. We have Stephen Miller out there. We're going to show the tweets saying, oh, we can go ahead and do everything we want to do. We can use the Alien Enemies Act now and deport all these people. The reality, as I read it, and I am not a lawyer,

but the reality is far different in my vantage point, which is they do actually have to give a warning to people that they are being targeted for the alien under the Alien Enemies Act. And those people, in turn, would get a right for Habeas Petition. Now, yes, in a hostile venue. And I want to get into the distinction between habeas petition and the administrative procedure act petition. But to me, this doesn't necessarily ring like a government, a Trump administration victory. That's right. Totally agree with everything you said. Then in all likelihood, we're now going to

see the new litigation taking place admittedly in Texas. But then any of these cases are in some sense going to be brought up to the Supreme Court to finally have the decision. Yeah, so whatever Texas decides and the Fifth Circuit decides. I guess the other question is what, and this is important, is what did the Supreme Court not render a decision on? Because there are big questions that still aren't answered. Absolutely. In fact, the Supreme Court basically says, look, when these habeas cases come up, then we will render opinions on a bunch of questions, and that in habeas, people can

bring up claims about the constitutionality of the Alien Enemies Act, the statutory interpretation of the Alien Enemies Act, and whether or not somebody is properly identified as a Venezuelan TDA member. Yeah, that's the big one is how are they identifying Venezuelans as Trendy Aragua members?

And also secondarily is, and maybe I'm over interpreting this, but how does the government make the distinction that we are in an act of war and Trendy Aragua is a foreign entity invading America, which it seems like is the prerequisite for using the AEA. Yeah, they're doing that in the most outlandish way that as long as, as far as I'm concerned, as long as the Supreme Court says that that is justiciable, that they can actually look under the hood and scrutinize the government's basis for making that claim, the government will lose. And that government basically lost that at the DC Court of Appeals, including by a conservative judge. So the government says, we don't even want to argue it. You just have to take our word for it. But that's still in play. That's absolutely in play, it seems, especially because the Supreme Court today kind of signaled it as well. And yeah, so I think that that's going to be litigated.

And I'll throw out one other curveball. Sure. So I do think this is everything that we've described in terms of people who are currently being detained and could be deported. What about the 200 plus people up to 300 people in El Salvador? They too should be able to get habeas claims because including the fact that today the US Supreme Court just said they were denied due process rights because they weren't given notice and opportunity, etc. If anything, if you read the notice that the government gave some of them, some of them got no notice at all. It actually says you are not entitled to judicial review. Okay. It told them the opposite. Right. So here's the interesting piece. If they bring habeas,

where would they bring it? There's a very good argument that if you're going to bring extraterritorial habeas, you bring it in DC. So it might all be going to Judge Boebsberg for those people that have already been taken out of the country. And we'll see how that plays out. Well, then the administration would appeal that and say, no, you have to do it in Texas and we'll end up in the exact same spot. Potentially so, yeah. Okay. Jesus. Without like, I don't know if it's possible to do this, but without getting too much in the weeds, what is the actual distinction between a habeas petition and the Administrative Procedure Act?

What kind of restraints do these detainees or these migrants have by not going through the APA? I think that, interestingly, the biggest constraint is the jurisdiction in which they'd have to bring the claim. Yeah. So if it was under the APA, you maybe could say, no, we're going to bring it in D.C., but now with habeas, it's where you're confined. Absolutely, yes. Okay. Talk about the dissents a little bit, because I know you were reading through those.

Yeah. So interestingly, Justice Barrett joins the dissent, so it's a 5-4 decision. She joins parts of the dissent. And to me, one of the most interesting parts that she decides to join is like a two paragraph part. It's part two. And what does part two say? But Justice Sotomayor, who's writing the dissent, says it is important to note that all nine justices today agree that these individuals get due process rights, notice, opportunity to be heard, etc. And it's funny because some people are also pointing out Stephen Miller's prior ex-tweets in which he said these people get no due process, which is the Supreme Court saying that is totally unconstitutional. Yeah, so I think that that's an important part. And then she also spells out the other legal questions that could also arise in habeas that we just

discussed. Now, even though justice Barrett does join that, there's a part of me that I think some members of the five majority Alito Thomas would say, we didn't agree with that. Right. We didn't agree.

Yeah. So to my, your and her descendant, she had this kind of harrowing point about, and I'm not sure if this is how you read it, but she said, you know, this decision does give the administration the green light to just kind of keep disappearing people. Now, I don't know if I, if I read it the same way, because they would have to get a

notification that they are under the Alien Enemies Act jurisdiction. But maybe I'm misreading it. I'm curious if you read her dissent at all. Yeah, no, I did. I do think that the – I don't read it that way. I read that there's a narrowing way you can read the Supreme Court, and I think that's the proper way to read what the Supreme Court is saying. I do think she's right about a lot of the optics of what the Supreme Court just did, because they are in some ways giving not a green light, but they are encouraging

the Trump administration to have gotten away with what looks like contempt of court, etc. And one other piece that we haven't discussed is what's still in front of Judge Boasberg in D.C. is, did U.S. officials act in total contempt of his orders? Now, it's true that his orders have now been determined to be vacated and that he didn't have jurisdiction. But it doesn't mean that people can get away with it. You can't say, oh, well, we acted in contempt because the Supreme Court was going to overrule you later. Yeah, you can't see the future and predict it and say, well, that's why we were in contempt. So Brosberg still can have adjudication of whether or not they acted in contempt of his order? He could.

It's a little bit of an uphill battle because it's in contempt of an order that has been vacated, and let alone it's in contempt of an order that has been vacated on the basis that he shouldn't have had jurisdiction in the first place. But he certainly could. And if they come back with habeas in DC and he thinks that that's proper, then I think he's in a much better position to proceed ahead with the contempt hearing. Now, the dissent did reference a lot how the government was incredibly shady through the process of this. Did we get any sense of that factored into the majority, if that affected how Roberts, for instance, looked at this or not? Yes. part of her dissent because I think you could be in Justice Barrett's position and say, I'm not going to render a judgment on that yet. I don't want to prejudge that because that might be coming right back to us as a contempt issue.

And then we will have to look at the facts as to what exactly the government did to try to evade court jurisdiction. That makes sense. Last question for you. There is a separate drama earlier today about this Maryland man who the government admits was wrongfully sent to El Salvador against a judicial decree that he should not be sent there. There was supposed to be a deadline at midnight for them to get him back from El Salvador. Government has basically told various judges, pound sand, we don't have

jurisdiction, can't get to him, he's in El Salvador. Earlier in the day, Chief Justice Roberts issued a stay, essentially just giving more time for a resolution here. I don't think he was tipping his hand. But that's not covered in this, and that still is to be determined, correct? 100%, except the two are very much related to one another. In fact, in some ways, you're bringing it up in the context of the other conversation, because the Maryland man is in El Salvador. Right. And the question is, can the U.S. government be compelled to bring him back?

Right. That's the 200-plus. That's the 287. That's the near 300 people. The answer that the Supreme Court gives to the Maryland man is going to significantly implicate the fate of those other people that have been taken. And their ability to file a habeas petition. Yeah. Okay.

Yes, absolutely. Yeah. Wow. So they just upped the ante, essentially. Absolutely. And part of me thinks that Chief Justice Roberts often does give one to one side and one to the other. So in a way, he did what the Trump administration wanted in the Boasberg case. Maybe he's going to come out the other way on the Maryland case.

And do we have any – sorry, I shouldn't know this, but what's the deadline he gave? It's tomorrow. I think it's about 5 p.m. So it's just like an extra amount of time for a briefing. But the interesting thing is he said, I'm giving you that amount of time for the petitioners to get back to me. And then the petitioners, I think, filed within 30 minutes. Yeah, they were ready yeah exactly and and the government's arguments in that case are particularly atrocious i just i'll give one example of it well the fourth circuit really

smacked him down right or smirk circuit smacked him down including on the fact that the allegation that the man is ms13 right that the government presented no evidence of that to the district court, and that's the time, that's the opportunity to present the evidence you have it. And let alone the new Solicitor General of the United States, Sawyer, in his first brief to the U.S. Supreme Court, says that this person is a veritable MS-13 member, which is ridiculous, given what the Fourth Circuit said. They didn't argue that. But Ryan, will it ultimately matter? Because the fundamental question is jurisdictional, right? I know. I hear you, though.

The government tries to make hay of this is an equitable situation. So when you're weighing the equities, you've got to remember that we're trying to deal with MS-13 and this MS-13 member. And the answer is no, we don't because you didn't even argue that. Right. Well, we'll see. I'll have you back on at 5 p.m. tomorrow to discuss. All right, Ryan Goodman of Just Security.

Thank you so much, bud. Really appreciate it. Thank you guys for watching. Really enjoy these conversations. I hope you do too. Subscribe to the feed and we'll see you later.