Jack - SCOTUS PER CURIAM Decision Temporarily Blocking Alien Enemies Act Deportations

Episode Date: May 19, 2025

"The President has invoked the Alien Enemies Act (AEA), Rev. Stat. §4067, 50 U. S. C. §21, to remove Venezuelan nationals who are members of Tren de Aragua (TdA), a designated foreign terrorist organization. See Presidential Proclamation No. 10903, 90 Fed. Reg. 13033 (2025). Applicants are two detainees identified as members of TdA and a putative class of similarly situated detainees in the Northern District of Texas. All of the alleged TdA members in the putative class are currently being held in U. S. detention facilities. In the application before the Court, the detainees seek injunctive relief against summary removal under the AEA." Follow AG Substack|MuellershewroteBlueSky|@muellershewroteAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

Hey everybody, welcome to a bonus public episode of the Unjustified Podcast. Today, Andy McCabe and I are going to read to you and make comments on the Supreme Court's 7-2 ruling in the AARP at all v. Donald Trump case. This is the one out of Northern District of Texas. This is the one that has to do with the Blue Bonnet detention facility. This is the one where the Supreme Court stepped in in the middle of the night because the Fifth Circuit and the District Court were too slow and put in a temporary injunction. And now they're filing for, they've ruled that there is a full preliminary injunction now. And we're going to talk a little bit, just a little bit about how this impacts not just the putative

class here in the Northern District of Texas, but how it could reverberate nationwide even though it's not a nationwide block. So, Andy, hi, How are you doing this morning? I'm doing great. I think this is a really interesting stand that the court has taken in this very important case. And it's also kind of a, it's an interesting, I know we'll talk a little bit about there is one dissenting opinion attached to this. And we'll talk a little bit about that at the end. It's kind of an interesting contrast and perspectives on the same issue. I would also point out that the court's ruling is what they call a per curiam opinion, which simply means

that this is the statement for the entire majority, all seven justices that voted for this result. But it doesn't identify exactly who wrote the opinion. That's the significance of per curiam. That's interesting too. And we're not going to read all 13 pages of Alito to you. We're not going to make you listen to that. We're going to feel free to read it, but we are going to point out some inconsistencies in it briefly so that you can kind of get the gist of what the dissent is. We will read the very

short Kavanaugh concurrence, right? There is a couple of paragraphs of a concurrence by Judge Justice Kavanaugh. But yeah, we're not going to make you sit through Alito's dissent because frankly, it's disjointed and it makes no sense. And the majority refers to it. Yeah, they do. Which is, you know, interesting as well. They kind of like took a shot back at him. Why they had the chance, I guess. Yeah, they do point out some of the things that they disagree with. And I think that that's plenty to kind of get sort of get the gist of, of, of what Alito was saying. Alright, so let's begin. It starts per curiam, like you said.

The president has invoked the Alien Enemies Act to remove Venezuelan nationals who are members of Trende Aragua, TDA, a designated foreign terrorist organization. And you can see the presidential proclamation number 10903. Applicants are two detainees identified as members of TDA and a putative class of similarly two detainees identified as members of TDA and a putative class of similarly situated detainees in the Northern District of Texas.

So keep that in mind whenever they refer to the putative class. It is anyone who is subject to removal for being named TDA in the Northern District of Texas only. All of the alleged TDA members in the putative class are currently being held in U.S. detention facilities. In the application before the court, the detainees seek injunctive relief against summary removal under the AEA. Okay, then we go to section one. On April 17, 2025, the district court denied the detainees' motion for a temporary restraining order against some removal under the AEA.

The detainees alleged that hours later, putative class members were served notices of AEA removal and told that they would be removed, quote, tonight or tomorrow. On April 18th, at 1234 a.m. Central Time, the detainees moved for an emergency TRO. At 1248 p.m., the detainees moved for a ruling on that motion or a status conference by 1.30 p.m. At 3.02 p.m., they appealed the constructive denial of the emergency TRO to the Fifth Circuit. The detainees also applied to this court

for a temporary injunction. I, Andy, I love that they kind of do a recap of everything that happened. Super important, the timeline here as to when those steps took place because it goes to whether or not the court had jurisdiction, whether or not the district court reacted quickly enough, and that's really at the heart of this dispute.

Agreed. The court goes on to say, we understood the government to assert the right to remove the detainees as soon as midnight central time on April 19th. The government addressed the detainees allegations on April 18th only at an evening hearing before the district court for the District of Columbia, where the detainees had separately sought relief. This is where they went to Judge Boesberg because they didn't know where else to go

That's right the government guaranteed that no putative class members would be removed that day and you can you know This is JGG v. Trump that they're citing But it further represented that in its view removal of putative class members as soon as the next day quote would be consistent with its due process obligations, and it, quote, reserved the right to take such action. Evidence now in the record, although not before us on April 18th, suggests that the government had in fact taken steps on the afternoon of April 18th toward removing the detainees under the AEA, including transporting them from

their detention facility, that's Blue Bonnet, to an airport and later returning them to the facility. Now, had the detainees been removed from the United States to the custody of a foreign sovereign on April 19th, the government may have argued, as it has previously argued, that no U.S. court has jurisdiction to order relief. At 1252 a.m. Eastern Time, which is 1152 p.m. Central Time, we ordered the government, in light of all these circumstances, quote, not to remove any member of the putative class of detainees in order to preserve our jurisdiction to consider the application. We invited the government to respond to that application after the Fifth Circuit ruled. The Fifth Circuit dismissed the detainees' appeal

for lack of jurisdiction and denied their motion for injunction pending appeal as premature, on the ground that the detainees gave the district court only 42 minutes to act. We now construe the application as a petition for writ of certiorari from the decision of the Fifth Circuit. We grant therue the application as a petition for writ of certiorari from the decision of the Fifth Circuit. We grant the petition as well as the application for injunction pending further proceedings, vacate the judgment of the Fifth Circuit, and remand for further

proceedings. Yeah, that's pretty fascinating to me that they jump in in the middle of the night to preserve their jurisdiction. They say, don't send anyone away. Let us know when the Fifth Circuit rules. Trump, you can reply to what the Fifth Circuit does. And now because of that Fifth Circuit ruling, that gives the Supreme Court jurisdiction here. Now they go on to say the Fifth Circuit aired in dismissing the detainees appeal for lack of jurisdiction. Appellate courts have jurisdiction to review interlocutory orders that have, quote, the practical effect

of refusing an injunction. A district court's inaction in the face of extreme urgency and a high risk of serious, perhaps irreparable consequences may have the effect of refusing an injunction. Here, the district courts in action, not for 42 minutes, but actually for 14 hours and 28 minutes, had the practical effect of refusing an injunction to the detainees facing imminent threat of severe irreparable harm. So accordingly, we vacate the judgment

of the Court of Appeals, the Fifth Circuit. The Fifth Amendment entitles aliens to due process of law in the context of removal proceedings. And that's a quote from another Supreme Court ruling in a detainee case. Procedural due process rules are meant to protect against the mistaken or unjustified deprivation of life, liberty, or property. We have long held that no person shall

be removed from the United States without opportunity at some time to be heard. Due process requires that notice is reasonably calculated under all the circumstances to apprise interested parties and that affords a reasonable time to make an appearance. Accordingly, in JGG, this court explained, with all nine justices agreeing, that AEA detainees must receive notice that they are subject to removal under the Act within a reasonable time and in such a manner as will allow them to actually seek habeas relief before removal. In order to actually seek habeas relief, a detainee must have sufficient time and information

to reasonably be able to contact counsel, file a petition, and pursue appropriate relief. Yeah, and Andy, when you talk about these references to JGG, this was the original case that Judge Boesberg, where he ordered the planes turned around, and that's when the Supreme Court stepped in and vacated his particular temporary restraining orders, but also said you have to give these people adequate notice. Meaningful due process. They basically said you have to, your process for seeking relief is the habeas corpus motion

and that they have to be filed in the jurisdiction where the detainee is being held. That's kind of how we got to this case. Right. And they also said, and you got to give them reasonable notice. And you remember, I was like, that's not enough. They're going to, Trump is going to come out and say, 10 minutes is reasonable. You know, like, then that's why I was like, thanks for the thanks for nothing. Supreme court. They go on to say the government does not contest before this court. That's Trump. Trump does not contest before this court that the applicant's description

of the notice afforded to AEA detainees in the Northern District of Texas, nor the assertion the government was poised to carry out removals imminently. The government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador. See, a Brega Garcia. I love that that case, they're citing that case as an example of the harm that could happen here if they don't get involved essentially. Exactly, exactly. Where it is alleged that detainees face indefinite detention. The detainees' interests at stake are accordingly particularly weighty. 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. And that's really important because now, you know, we've been saying, looks like the Supreme Court isn't taking the government's word for things anymore. And with that, your 24 hour notice in English, one page with no box that they want to contest this through habeas petition, that does not pass muster as reasonable due process. Now they have lost faith in this administration in the government. I think that's absolutely right. That's a big, when I read that, that sentence, it seems innocuous. It smacked me across the

face. It's the continuing erosion of the perception of the government and the confidence in the government that the courts used to have. and this is the result of these absurd positions that they've been taking in you know all this litigation anyway. Yeah so that's why they're like considering a Brega Garcia and everything else notice roughly 24 hours before removal devoid of information about how to exercise due process rights to contest removal, surely does not pass muster. That's huge. But it is not optimal for this court, far

removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. So we remand the case to the Fifth Circuit for that purpose. And here they're saying, it's not up to us to decide what adequate due process and notice is. Y'all need to figure that out. That's right. That's why we're remanding the case. That's right. They go on to say, to be clear, we decide today only that the detainees are entitled to more notice than was given on April 18th and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is

adjudicated. We did not on April 19th and do not now address the underlying merits of the party's claims regarding the legality of removals under the AEA. Why not? Come on guys. You jumped in and decided on immunity when nobody was asking. Why can't you do this?

Well, there is that. We recognize the significance of the government's national security interests, as well as the necessity that such interests be pursued in a manner consistent with the Constitution. In light of the foregoing, lower courts should address the AEA cases expeditiously. So that's interesting.

Okay, they're passing on the substantive issue of the AEA, but they're basically ordering the lower courts, you have to address it. In other words, don't just send us back another due process case. Send us back a ruling on whether or not you can deport these aliens based on the Alien Enemies Act. Right. And we put aliens in quotes. And I think it's interesting that they're like, and do it with some snap in your step. We do it expeditiously. That's right. We're ready. We're ready to rule on the legality of the AEA. You just got to get us the vehicle.

So that's interesting to me. All right. We're going to get to part three. We're going to talk a little bit about the dissent and what the justices in the majority have to say about it. But we do have to take a quick break. So everybody stick around. We'll be right back. All right, everybody. Welcome back. We're on part three, which is page five of this ruling, of this, I should say, injunction. It starts by saying the dissent, which is what Alito wrote, 13 pages of, again, read it if you feel like it. The dissent disputes both this court's jurisdiction and the availability of class wide relief. We do not find its reasoning

persuasive. And that's interesting because when Alito is complaining about class wide relief, he's just talking about not net net like nationwide. Right? He's just talking about this putative class in the Northern District of Texas. He doesn't even want you to have that as a putative class. That's right. That blows my mind. Yeah. All right. First, we reject the dissent's characterization of the events that transpired on April 18th, which led it to question our jurisdiction. District courts should approach requests for preliminary relief with care and consideration, but exigent circumstances may impose practical constraints.

Preliminary relief is, quote, customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. Everybody knows this, right? Yes. The purpose of such relief is merely to preserve the relative positions of the parties pending further proceedings. In this case, the record before the district court, although limited, indicated that the removals

of putative class members were likely imminent. The detainees attached four declarations to their emergency motion for a TRO. In one, for example, an attorney relayed a detainee's report that immigration officers, quote, had informed them that they will be deported either today or tomorrow. In a second, a nonprofit director

described conversations with family members of detainees and linked to a video of detainees holding notices of removal as evidence that detainees, quote, were being removed. That seems pretty imminent to me. Yeah, I mean, yes. I mean, this would be Alito's dissent would be akin to me going to the court seeking a restraining order. I have an arrest report from my husband that he blackened my eye and Alito saying, we need

more evidence and time to consider a temporary restraining order. Like that's the whole point of a temporary restraining order is to get it fast, get the positions of the parties. Then you go on the merits and do further, you know, year long, more permanent restraining orders. You get a sense that the court here, the majority, seven of them, um, are acutely aware of everything that's been going on in this deportation saga. Oh, right, with like the middle of the night buses and the moving, yeah. And the nonsense and Boasberg's chord, like the planes are moving, bring them back, we

can't hear you, we can't hear you. And when we get to, when we talk about Alito's dissent in a little bit, he takes the exact opposite approach. He's only focused on essentially defending what the lower court did and ignores essentially the really like significant harm that these people are facing if the court doesn't step in and stop the removals. Right. It's like he's not dealing with people or humans or... Right. Not concerned about the fact that these people could be thrown into a foreign dungeon

for the rest of their lives, never to be returned again, if the court doesn't just step in and slow things down. Yeah. And they go on to say, importantly, the relevant question for purposes of our jurisdiction is whether, at the time this court was called upon to intervene, whether the district courts in action had the effect of refusing an injunction. In their application to this court, the detainees represented that many individuals had already been loaded onto buses, presumably

headed to the airport. Shortly thereafter, the government represented on the record in federal court that it reserved the right to remove detainees after midnight. We had the power to issue injunctive relief to prevent irreparable harm to the applicants and to preserve our jurisdiction over the matter. Now that the Fifth Circuit has ruled, our certiorari jurisdiction also supports review in the ordinary course And that's a really important paragraph because that is what the court is using to define its jurisdiction

they're saying look we had ten minutes to get this done before the buses left and people were loaded on planes and We're about to suffer a reporable harm. So the fact that the district court didn't do anything on an emergency tro Whose you know time limit basically was coming up in in ten hours didn't do anything for 14 hours That is what gave them the jurisdiction to jump in at one in the morning and say stop everything It's really notable because this is a court that often takes shelter in procedural matters, right? Likes to rule on the technicality rather than the humanity involved. That's my opinion.

But here they've really taken the opposite position. Yeah. And what's interesting is that that two in the morning, that midnight stoppage that they did, the reason that they didn't certify the putative class or grant a preliminary injunction is because the Fifth Circuit had not yet ruled and that did not give them certiorari jurisdiction yet. The Supreme Court. That's why they came in and said, stop this now because the district court failed to do it in a timely fashion.

We're stopping it. That gives us jurisdiction. And we will think about this more after the fifth circuit weighs in. That's right. And that gives them the ability to consider the emergency preliminary injunction as something that they they can, you know, do in their jurisdiction, something that they can consider, something they can grant a writ of certiorari for, right? It becomes a matter before then.

They had to wait for that Fifth Circuit ruling. That's why they did it that way, so that they could first preserve the party's positions and preserve their jurisdiction and do what the district court failed to do in a timely fashion to prevent irreparable harm and then wait until the Fifth Circuit rolled in with their wrong ruling so that that gave the Supreme Court then jurisdiction to weigh in on what the Fifth Circuit did. Exactly. Yep. They go on to say, finally, this court may properly issue temporary injunctive relief to the putative class in order to preserve our jurisdiction pending appeal. Now here, AG, they've dropped a footnote, which I think is important for us to go over.

So they say in the footnote, we note that the district court recently denied class certification as to the detainees underlying habeas claims, challenging the validity of removal under the AEA. By its own terms, the District Court's order is, quote, automatically vacated by our order granting a writ of certiorari. And in any event, the District Court's order primarily addressed the detainees' ability to challenge the validity of the AEA removal on a class-wide basis. The application before this court seeks only to vindicate notice rights on a class-wide basis.

To the extent that the district court's order addressed due process, the district court's concerns as to the propriety of class-wide relief focused on considerations downstream of the initial notice necessary for detainees to raise any substantive claims against AEA removal. So here they're making a distinction between what the class was certified to do, right? There's a difference between certifying the class to challenge the notice provision and whether or not due process was, There's a difference between certifying the class to challenge the notice provision and

whether or not due process rights were satisfied. There's a difference between that and certifying the class to challenge the removal under the AEA, the substantive legal issue at the heart of this thing. So, and again, I think this is a way to kind of pick through Alito's opposition to the certification of the class. Okay, I get it. Yeah, because they mentioned him. They mentioned his descent. That's right. That's right. Okay, so the paragraph continues. This is back in the substance of the opinion. Named applicants, AARP and WMM, assert that they are at imminent risk

of being classified as alien enemies and removed from the United States. But the record does not indicate that they have received any formal notice of removal under the AEA. The named applicants, along with putative class members, are entitled to constitutionally adequate notice prior to any removal in order to pursue appropriate relief.

Although the putative class members may ultimately take different steps to protect their own interests in response to such notice, the notice to which they are entitled is the same. And because courts may issue temporary relief to a putative class, we need not decide whether a class should be certified as to the detainees due process claims in order to temporarily enjoin the government from removing putative class members while the question of what notice is due is adjudicated.

Okay. Now I get it. Now I get that footnote because they're saying like, hey, you know, we get to decide this. We can issue temporary relief. And even though the lower court, you know, way down, I'm assuming in the Northern District of Texas, refused to certify the class. The fact that we're preventing the putative class from being removed without due process. And that's the due process thing gives us the ability to grant writ of certiorari and that and therefore that sort of moots what the district court did with the by not granting the class certification.

Yeah. So like when you're the law around certifying a class, one of the factors is whether the people, um, proposed to be in the class, they have to have basically the same legal interests. And here, what they're acknowledging is like, yeah, once they get to the point of challenging their removal under the AEA, they might have different interests at that point based on factually different circumstances. But currently, they all want to go to El Salvador. Right. Right now, for the purpose of certifying this class to preserve their due process rights,

their interests are all the same. They all are due adequate notice before they're removed. So in that way, it's very clearly a certifiable class. Maybe later it's not for the substantive issue. Like I say, I'm not a member of Trende Aragwa for one reason, you say you're not for a different reason. That could make us like not, you know, a good group of people to have together

in a class, but we're not there yet. We're talking about due process and right now our interests are the same. Right. It continues here. We recognize that the government has agreed to forego removing the named petitioners pursuant to the AEA while their habeas proceedings are pending, but we reject the proposition that a class-action defendant may defeat class treatment if it is otherwise proper by promising, as a matter of grace, to treat the named plaintiffs differently. And we are skeptical of the self-defeating notion that the right to notice necessary to seek habeas relief must itself be vindicated through individual habeas petitions

somehow by plaintiffs who have not received notice. That's fascinating. This is a super important paragraph, right? Because again, to go back to this theme that we've been hitting a lot, another really bold example of the court losing faith and trust in the government. That line, we reject the proposition that a class action defendant, that's the government in this case, may defeat class treatment if it's otherwise proper by promising as a matter of grace to treat the named plaintiffs differently.

They're saying like, just because you're saying, okay, we'll be nice to these two name plaintiffs differently. They're saying like, just because you're saying, okay, we'll be nice to these two named plaintiffs, so therefore you don't need to certify a class. We're not taking you at your word. Right. That's what they're saying. Yeah. And we're skeptical of the self-defeating notion that the right to notice, to seek habeas relief must itself be vindicated through individual habeas petitions.

Meaning you know the government's like, no, we'll take care of everyone. And oh, you want us to take your word for it? Because you know, you want individual habeas petitions for the rest of this group who probably doesn't even know you were putting them on a plane? No. Right. And again, it gets back to that thing we were just talking about. They're saying like, yeah, there is an individual determination to be made in particular habeas

claims, but not on the question of notice. The question of notice applies the same to everybody, and particularly to people who don't even know they haven't gotten any valid notice. Hence the reason for the class. Right. It's like, and us doing it negates the fact that the district court didn't want to do it. Yeah. All right. We have the conclusion and a couple of brief paragraphs of a concurrence from Kavanaugh and just a brief explanation of what Alito went on for 13 pages about, but we're going to take one more break. Stick around. We'll be right back.

Okay, we're back and this is the conclusion of the per curiam opinion of the court. They start, the application for an injunction pending further proceedings is granted. The motion for leave to file a supplemental appendix under seal is also granted. The motion for leave to file a supplemental appendix under seal is also granted. Additionally, applicants suggested this court treat the application as a petition for a writ of certiorari. Doing so, the petition is granted. The judgment of the Fifth Circuit is vacated and the case is remanded to the Fifth Circuit. In resolving the detainee's appeal, the Fifth Circuit should address one, all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs underlying habeas claims that the AEA does not authorize their removal

pursuant to the president's March 14, 2025 proclamation. And two, the issue of what notice is due as to the punitive's due process claims against summary removal. The government is enjoined from removing the named plaintiffs or putative class members in this action under the AEA, pending order by the Fifth Circuit in disposition of the petition for a writ of certiorari if such writ is timely sought. Should the petition for a writ of certiorari be such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down

of the judgment of this court. Which is what's gonna happen. Yes, the government may remove the named plaintiffs or putative class members under other lawful authorities, it is so ordered. So they're really just laying out the process there, what they're requiring the Fifth Circuit to consider, those are the two questions essentially that have been teed up for the Fifth Circuit.

And then laying out procedurally, depending on how the Fifth Circuit decides, renders their decision, there's an opportunity really for either party to pursue Supreme Court review. And they're very strongly signaling that they're anxious and ready to conduct that review. Yeah. And this is interesting because the Fifth Circuit doesn't want to do this. They didn't think that this thing should have gone to where it's going. They didn't think they had jurisdiction in the first place.

So now they have to. The Supreme Court is instructing them to do this. So it'll be interesting to see what they come up with. And it will be further interesting, more interesting, I should say, to see what the Supreme Court thinks of what the Fifth Circuit comes up with. Yeah. Because they're kind of doing it like, fine. Okay, here's the procedure for notice. And they might leave stuff out or that might

not be as robust because they don't want to do this, right? So it might not be as robust. So I'm very interested to see what they come up with. But I wanted to bring this up, Andy, because a lot of folks are like, yay, nobody can be deported under the AEA right now or removed or disappeared or kidnapped or rendered or whatever words you prefer to use. And I just want to point out this is only for the putative class in the Northern District of Texas. However, it does have the effect of a nationwide injunction because the Supreme Court is basically saying here, try this again in the Western District of Philadelphia and you'll get the

same answer. That's right. So yeah, this has been kind of rattling around in my head all week because of the Supreme Court arguments earlier a few days ago in the Birthright Citizenship case, which we're not going to go into. And I thought Justice Jackson brought this point up really well in that discussion. We keep talking about these universal injunctions. Does a district court have an ability to do a universal injunction? It's really a very different question than that.

When even a district court finds that the government, the federal government, whose actions apply to the entire country is breaking the law, is engaged in conduct that the court deems to be unlawful, they're really only issuing one order, that is to the government to stop breaking the law. And that by definition does or should apply across the entire country. And if we don't do that,

then you have this like whack-a-mole situation, like, okay, the district court, it only applies here in the Northern District of Texas, let's do it in the Northern District of California. And then you have to start the process all over again. So that's kind of, I think, what they're hinting at here. Like, you cannot send people out of the country based on the AEA. But on the other hand do process with the way that the process shoddy notice that you've been giving them or even under the AEA

Like justifying the removal under the AEA Substitutively, but then they do say you can continue deporting aliens Under any other lawful authority. So, they're not- Right, the INA, for example. Exactly. Typical kind of immigration matters, right? Right, and because you know Trump's coming out, they won't let us deport people. The Supreme Court, I mean, he's big mad over on true social screeds upon screeds. And he's like, the Supreme Court won't let us get rid of murderers and da-da-da.

And it's just a lie. The Supreme Court isn't saying that. The Supreme Court is specifically saying you can't disappear people under the Alien Enemies Act Proclamation without due process. That's right. You can deport people under the INA, under the AREA. Like there's a ton of other laws. Sure. The way people get deported all the time. There's a process, there are judges involved, you get a lawyer, you get a hearing,

the whole nine yards follow the law, do what you think you have to do. Well see, Trump wants to be able to remove people without due process and he wants to be able to remove a bunch of people at once without due process. And when he can't do that, he feels like he needs to tell everyone that he's being stopped from doing, you know, whatever trumped up thing he's lying about trying to do. So

it's, it's just all ridiculous. We then have a Kavanaugh concurrence and it says, I understand and agree with the court's decision to grant a temporary injunction. The injunction simply ensures that the judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed. The underlying legal question that the courts may need to decide before the removals occur include one, whether the Alien Enemies Act as distinct from the ordinary removal process and under the Immigration and Nationality Act, the INA, what I was just talking about, whether it authorizes removal of these detainees, and two, if so, what notice is due before

removal. Several federal district courts have already issued conflicting rulings on the underlying legal issues and he cites ASR, GFF, DBU, J.A.V. There's actually only one judge that's in conflict with the idea that the Alien Enemies Act is unlawful and that's the one in the Western District of Pennsylvania. That's right. Kavanaugh goes on to say, the executive branch and the detainees agree about the urgency and importance of those legal questions. The executive branch and the detainees agree about the urgency and importance of those legal questions. The executive branch has represented that this case is important for America's national security and that it is critical to remove TDA members subject to the proclamation quickly. For their part, the detainees have explicitly requested that the court move fast and grant

certiorari before judgment. The circumstances call for a prompt and final resolution, which likely can be provided only by this court. No, I've heard him say that before. Yeah. At this juncture, I would prefer not to remand to the lower courts and further put off this court's final resolution of the critical legal issues, rather consistent with the executive branch's request for expedition and as the detainees themselves urge,

I would grant certiorari, order prompt briefing, hold oral arguments soon thereafter and then resolve the legal issues. So he's really leaning forward and basically saying, hey, we need to decide whether it's lawful to remove people under the Alien Enemies Act as the administration is currently doing. And this mess is not going to be cleaned up until we do, so let's get it on.

Ha, that's interesting and it scares me kind of. Because like you said, Kavanaugh is saying here, don't send this back to the Fifth. Let's decide whether the Alien Enemies Act is lawful and what. We can have oral arguments, we can have a whole thing, we can decide what the proper, uh, you know, notice would be. It makes me think he might actually allow the alien enemies act proclamation. It's possible. It's possible. But let's also remember he's a part of the majority. So he's at least he is in lockstep with them on the notice issue.

That is absolutely not, the way they're doing it now is not, doesn't pass much. Right, he might just be like, sure, go ahead, alien enemies act it up, you're the president. You have a lot of unitary executive authority, but you have to give 21 days notice in Spanish and English or the language that the person, like that's where I feel like he's going

and I wonder how many people on this court. And a lawyer and a hearing. You know, he's, I think he's going to support the whole due process argument that's been made by the PEDIS. Where he falls out on the legality of doing this under the AEA, that's an open question. Yeah. And it makes me wonder how many other, if they have enough votes to say that the AEA is lawful. We're going to find out. But you need a certain amount of due process because that takes us back to Japanese internment

and World War II or World War I. Yeah, it does. Yes, it does. And we're not at war. It could. Like for any majority of the Supreme Court to come out and say, the definition of war is up to the President of the United States is like, that's bonkers to me. Anyway, I, I, I, I'm, I should, man, I shouldn't say this because I'm going to look like an idiot, but I'm actually hopeful

because look at the way the lower courts have handled this. It's not just, you know, judges nominated by Democrats. You got judges across the spectrum that are saying, this is not right. The Alien Enemies Act was not created for this. It's been used only in times of war. We're clearly not in a war right now. The administration itself has said in multiple assessments

that people have been fired over apparently. We're not in a state of war. We're not being invaded by TDA. Nicole Soule-Naguero-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-Malcom-M doing as habeas petitions? Yeah. Like, is that it? Ridiculous. Although I'm almost afraid to make that argument again, because they might just start dropping bombs on Caracas just to make their argument better. I know.

I know. Right. But yeah, this is not what invasion looks like from a foreign nation, I'm just saying. Anyway, Joe, should we just maybe just to discuss the Alito opinion a little bit? Yeah, because I have a couple of things that some really astute folks on Blue Sky, I follow a lot of great legal folks and law professors on Blue Sky have pointed out about inconsistencies

in Alito's dissent. And you know, like you said, we got a taste of his dissent by reading the per curia majority opinion. But there are just a few things I think we should point out. But again, one last quick break, stick around. We'll be right back. Welcome back. Okay, this is the last part now. We're going to talk a little bit about what Justice Alito does in his dissent. So just to kind of summarize for you, he really makes two basic arguments. The first part of his argument is focused very closely on what the lower courts, the district court, Northern District of Texas and the Fifth Circuit did. And he challenges the majority's conclusion about the necessity of

getting involved at all. Right. And it's really, it's remarkable because the language that he uses is very defensive of the lower courts and completely, absolutely by my estimation ignores the irreparable harm argument. Right. That was the thing that seemed to me to be really motivating the majority. Like these people were about to get shipped over to the dungeon. Right. Like if you apply, like if on Tuesday, you're told that you're going to be shipped out Wednesday at midnight. And so then you apply to the district court for an emergency restraining order and saying,

please answer us by midnight on Wednesday, lest it be too late. And they don't, then it is not unheard of for you to go up the chain and get jurisdiction or relief from Fifth Circuit and or Supreme Court, right? I mean, that's, it's time sensitive. There's a recognition of the significance of the harm built into these cases, built into these fights. And in this case, the harm is so dreadful and it's so imminent, the court felt like it was compelled to step in. And Andy, sorry to interrupt, but just so everybody knows,

irreparable harm is one of the standards that you have to meet in order to issue a temporary restraining or a preliminary injunction. That's right. You have to address it. So just to give you an example, Alito, from his perspective, he says, whether or not the actions taken by applicants' attorneys are thought to be justified

under the circumstances, delivering such an ultimatum to a district court judge, and then he quotes, act on my motion on a complex matter within 42 or 133 minutes, or I'll file an appeal and divest you of jurisdiction, represented a very stark departure from what is usually regarded as acceptable practice. That's what he's focused on here, defending acceptable practice in the courts. The fate of these people who are about to be sent to a foreign dungeon never to be returned or seen or heard from again does not come

up in his in his review of their decision. And this was in his dissent when he dissented for at the midnight thing when they issued a temporary restraining order he was like they only had 42 and 133 minutes. And everybody pointed out that that was incorrect, that the court actually had 14 hours, not 42 minutes. And he made several mistakes. It just errors a fact in that first descent that were pointed out. So the fact that he, I guess, just didn't hear them, maybe he's busy flying flags with his wife. I don't know. Who knows, who knows?

But he was wrong, it was pointed out, and he's doubling down on his wrongness in this dissent too. Yeah, so that's the first part. And then really the second part is a long discussion of, he believes that you cannot use a class certification, you can't have a class action essentially in a habeas matter because there's no historical precedent for doing it and it's not called for.

But he does admit that there are some aspects of like normal civil procedure that have been recognized and used in habeas matters, but he believes that that's not appropriate. The class certification rules that are part of our civil procedure should not be imported into habeas actions. Yeah. And here's where I found a really interesting, oh, just, I guess, error. I mean, it's really egregious. But let me bring this up because I saw this from Lee Kavarsky and I've quoted him. I follow him on Blue Sky. You should

follow him too. He's a professor of law at the University of Texas and he always catches these things. It's pretty astounding, the level of stuff that Professor Kowarski knows. But he says, want to see something incredibly bad? Here's Alito quoting a source to suggest that you can't do habeas class actions. And this is from Alito's dissent here. And here's what it says. Two years later, another commentator observed, and by the way, let's talk about all the commentator citations in a second.

Yeah, where's the Supreme Court precedent decision? Oh, that's right. There isn't any. Yeah. Well, Bob Tractor Barrel said, you know. So here's the quote in his dissent. He says, two years later, another commentator observed that, quote, class actions for habeas corpus relief have rarely been attempted, perhaps because rule 81A2 seems to bar the application of the civil class action rule to habeas proceedings. And that's what you just talked about, Andy. Right, right.

That in our civil suits, you can't. And that quote, he cites to a Harvard Law Review article. Right. Now, Professor Kavarsky has read that article and says, guess what the very next sentence in that article says. Let me read you the whole sentence, OK? This is from the original Harvard Law Review.

Class actions for habeas corpus have rarely been attempted perhaps because rule 81A2 seems to bar the application of the civil class action rule to habeas proceedings but the controversy over rule 81A2 has been mooted by a case called Harris v Nelson which authorizes the district courts to use a procedure analogous to a civil rule even where rule 81A2 bars its direct application. So, if you read the second sentence right after what the one Alito quoted, it totally negates everything that Alito quoted, which means he fully cherry picked it or he had his clerks go out and find any mention anywhere in any, you know, first of all, case and they

couldn't find any case. So they just found commentators who happened to say these things in law review articles or on, you know, in magazines or whatever, and found one sentence that says, oh, rule 81A, two bars, the use of, you know, taking the fact that we have civil class action and moving it over to habeas petitions without noticing the second sentence. And Andy, I am just reminded of the Marbury v. Madison citations in the immunity case by the Trump administration over and over again, leaving out that second part. Yeah. Now, and I'm not saying this to defend him because I think the use of that quote from the unknown commentator was a bit deceptive.

He goes on in the next paragraph, which is a separate section, he acknowledges that lower courts have held that our decision in Harris sometimes permits procedures that resemble those used in a class action. So even in his own His own piece is Back wishy-washy Plagiarizing it from the rest of that Harvard guy like yeah, it's it's not I don't find it persuasive. I think it's like Look over here. Don't look at the big picture. Don't look at the

human issue involved here. It's like, just focus on these picayune readings of procedure. And commentators, all of these commentators, it would be like Katanji Brown Jackson saying, yeah, but I heard on Mueller, she wrote in the fantasy indictment league that Manafort definitely committed conspiracy and should have been charged with it. Because a commentator, Mueller, she wrote, said so. Yeah, it's goofy. I await the day I am quoted as a commentator in a per curiam order by the Supreme Court. Heck yeah. It's coming. Keep hope alive. Keep hope alive. Anyway, if you'd like to read this entire Alito dissent, please feel, you know, have

at it. It's just a bunch of garbage, honestly, if I'm being honest. And seven other justices disagree. But I don't know how many justices agree or disagree that the alien enemies act proclamation is lawful. So we're going to see a split somewhere. Yeah, I think where some justices, I we know Alito and Thomas are going to be pro Trump using the AEA. How can they get three other votes from conservative justices who say it's legal, but there needs to be a due process? And what will the Fifth Circuit say? Yeah, I don't know. Will the Fifth Circuit say, AEA, totally lawful, go for it bro, But you got to give 21 days notice in the language and blah, blah, blah.

Yeah. And will the Supreme court uphold that or will they vacate? Will they overturn that too? Yes. So these people, anyone who is, who's currently in detention or will end up in detention under that theory, um, you know, they're not out of the woods. So we'll have to see how this thing plays out. Hopefully, you know, they get the court gets to it quickly.

I also kind of feel like maybe I'm just being like, yeah, I'm being maybe unreasonably optimistic here, but I feel like their desire to get to it quickly, I feel like is more indicative of a concern about the practice. But who knows? I can be totally wrong. I will be surprised if they declare the president's use of the alien enemies act unlawful. I think that they have enough votes to say it's lawful, but to lay out a due process, which, and the reason that I disagree with that, and I think it's awful is because this administration will cheat on that due process and cut corners and it won't be real due process. All right.

All right. Let's let's you want to wager. Oh yeah. What do we bet? I don't know. So for the Supreme Court. Yeah. Isn't that stupid?

This is why I don't gamble. So for the Supreme Court. Yeah. Isn't that stupid? This is why I don't gamble really ever. I have no interest in it, but just to make it interesting, if they come down against the AEA, the way the AA has been used, then you have to make a donation to democracy forward in my name. And if they come down supporting it, then I have to make one in my name. And if they come down supporting it, then I have to make one in your name. I 100% am down for this wager. Awesome. And we're not going to talk about what the process is, right? If they,

regardless of what they decide on the AEA. I think the process argument, I think that... We're not betting on the process. No, just the legality of the AEA. Because they all think that process needs, they all think that there needs to be due process. You've got seven people who've gone that way already. So I think the process is going to get fixed. But whether or not you can use the legality of using the AEA to justify these deportations, yeah, that's what we're wagering on.

Yeah. All right. Because I think that they're going to let the government I think they're going to give deference to the government to define an incursion. They might that's the thumbs up. If it gets thumbs up, you win. If they give thumbs down, I win. All right. So the way democracy forward wins. We yes either way democracy forward wins. Awesome. And it was so great to have Sky Perryman on the show last week. Yes. Oh my God. That was a big day. That was a big day. I appreciate everything that they're doing. All right, everybody. Thank you so much for listening to

this bonus episode. We'll be back in your ears next Sunday with Unjustified. I've been Alison Gill. And I'm Andy McCabe. Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joel Reeder at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds and the show is a proud member of the MSW Media Network, a collection of creator-owned independent podcasts dedicated to news, politics and justice. For more information, please visit MSWMedia.com.