 The United States Supreme Court issued an order early morning on April 19 that responded decisively to President Trump’s latest effort to rush immigrants out of the U.S. and into a notorious El Salvadoran prison before anyone has time to react. The high court’s answer: No, you shall not. But
Justices Alito and Thomas have filed a dissent that says in substance: Sure,
go for it, Donald – nothing urgent here. The
dissent is worth examining because it makes plain that in the emerging
confrontation between a judiciary determined to maintain a commitment to due
process of law and an executive who openly claims unrestrained power, Alito
and Thomas are eager to abandon constitutional limits. The dissent is so evasive, so willfully blind to the actual matter at issue, as to make plain that the two are happy to watch Trump dismantle the rule of law from the sidelines. Trump claims that if Homeland Security detains individuals on the allegation they are Tren de Aragua gang members, he has the right to send them to a brutal “Terrorism Confinement Center” in El Salvador without giving the men any chance to dispute that they are gang members or that the president has the authority to exile anyone to a foreign prison. The
rule of law requires more. Such accusations are frequently based on unreliable information, like tattoos, and must be
considered by a neutral party – a judge. The government admitted Abrego
Garcia, for example, was sent to El Salvador in “error,” and subsequent
assertions he was a gang member rest on such dubious “evidence” as wearing a Chicago Bulls cap and a hoodie. Friday morning the ACLU sued to restrain Trump and his government when they began the process of shipping more supposed gang members to El Salvador. After asking a federal trial court and then a federal court of appeals to pause the process so the men’s defenses could be heard, the ACLU went to the Supreme Court. And shortly before one a.m. on Saturday morning, seven Supreme Court justices issued this order halting Trump’s plan: “The
government is directed not to remove any member of the putative class of
detainees [the supposed gang members] from the United States until further
order of this Court.” Saturday
afternoon Justices Alito and Thomas released their opinion condemning the
other seven justices for acting “hastily and prematurely,” and calling the
decision “unprecedented” and “legally questionable.” Alito
and Thomas Attack the Seven-Justice Majority The
two right-wing justices, blustering in mock indignation, stormed a blizzard
of objections:
Alito and Thomas were simply outraged that the majority acted “within eight hours of receiving the application,” issued their order without taking the time to write an opinion and failed “to follow established procedures.” Alito and Thomas decided simply to ignore the pressing considerations that prompted the majority to take immediate action There
are responses to the technical, procedural objections that Alito and Thomas
raise. But we needn’t bother with the flawed technicalities because it is
enough to observe that Alito and Thomas decided simply to ignore the pressing
considerations that prompted the majority to take immediate action, the
reasons they did not want to wait until morning to act. For
obvious reasons the court considered the matter urgent: First: The Supreme Court had already issued an order, not two weeks earlier, that required the government to observe the fundamental principles of due process before removing anyone from the U.S. – that they have notice and a meaningful opportunity to be heard. “Detainees must receive notice . . . that they are subject to removal,” the Supreme Court directed on April 7, and “notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek [judicial relief] before . . . removal occurs.” (Trump v. J.G.G.) Moving
swiftly was imperative because the government was already in the process of
flouting the Supreme Court’s earlier order. Second:
The government had recently removed other alleged gang members from the U.S.
by rushing them onto planes and flying them out of U.S. air space even while a court was
weighing the claims of the supposed gang members. When the
government acts with haste to deny due process, the accused have no choice
but to quickly seek judicial review. Was the
Supreme Court to allow their requirement of due process before removal to be
ignored again? Third:
The Trump administration maintains that once the government moves faster than
the district court, it’s too late for a court to do anything. How can Alito
and Thomas argue against urgency when the government acts summarily in order
to negate the judiciary’s power to remedy even admitted wrongful action? Fourth:
If, as Alito and Thomas imply, the government may not have
actually intended to fly the men out of the country before a court could act,
then the order does no harm. It only bars the government from doing would
they (supposedly) did not intend to do. Meaning there was no
downside, no reason not to issue the order that so disturbs
Alito and Thomas. Justices
Alito and Thomas Have Chosen the Side of Autocracy The
ACLU asked the Supreme Court to act immediately because waiting for further
rulings by the trial court or by the court of appeals or for the Trump
administration to submit a brief would likely have meant that the men would
be in the Salvadoran prison by the time those things happened. Have
Alito and Thomas really failed to grasp the need for the urgency they decry? Even
the four other right-wing justices were ready to draw the line, ready to
confront an administration that openly mocks the rule of law, claims that
judges have no right to get in the way, and seems ready to ignore court
orders. In the struggle between constitutional order and lawless presidential
power, Justices Alito and Thomas have chosen the side of autocracy.  Share Reasoning Together with Mitchell Zimmerman You may also be interested in my road-trip novel / social thriller Mississippi Reckoning. Read an excerpt. “Gripping and harrowing . . . deeply disturbing yet also revelatory. Punches the reader in the gut . . .” –Los Angeles Review of Books “Will
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Reckoning.” –Legendary civil rights hero Diane Nash |