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.
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You got this wrong-the government got everything they asked for and more. They wiped out the class action and forced the plaintiffs to file in Texas, where they will always lose. SCOTUS paid lip service to due process, but it isn’t gonna happen. ICE moves people around and then they say how can they file for habeas corpus when they’re in El Salvador?
Something that seems to be overlooked, or at least not understanding the significance of, is the fact that the government (and it didn't seem that SCOTUS disagreed) is stating that once someone (no matter who and even if they are a citizen or not) is sent to El Salvador they are out of reach and nothing can be done. If this is true than that alone should make it illegal to do this. That is the equivalent of taking all their rights away. And that is decidedly unconstitutional for citizens. And since there is no guarantee that who they are sending are not citizens, then it should not be allowed under any circumstances. The Dems should be shouting this as loud as they can and as often as they can. How can this be acceptable?
Wondering (so many questions, really!) if, while their due process hearings/actions are held, are immigrants (henceforth) going to be subject to and liable for payment of the stupid new "$998 per day fines" administration JUST announced they'll be charging immigrants for "failing to comply with deportation order"?
While I pledge my allegiance to all things Bulwark, I have come to really depend on these specific breakdown pieces to help in understanding the legal aspects of everything going on. Thank you.
Really appreciate this discussion. I was struggling to understand what was going on when reading articles about this. Can't survive without you guys these days! :)
The Vladeck reading isn’t as rosy: https://substack.com/@stephenvladeck/note/p-160824388?r=d0dak&utm_medium=ios&utm_source=notes-share-action
Very informative reading. Ty for the link
Keep the information and attention on this issue coming. I still feel such worry and grief and horror, but it helps to have a picture of what is actually going on.
I want them ALL back for their due process. This is a due process issue, not an immigration issue. C'mon dems (and repubs??? ok, maybe not).
I totally agree. Every. Single. One.
Very informative! Thank you!!
Please stop interrupting your guest.
Thank you, Sam and Ryan. I always appreciate your short up-to-date takes. Ryan, thank you for breaking down the complexity of how the justice system works. Your consistent, even discourse makes it easy to absorb. There is a lot of emotion and anger and outrage on this topic, which we hear and share with other Bulwark hosts (and I appreciate those rants). But sometimes I really really appreciate the more calm, direct insights. Still waters run deep.
So, I've been thinking a lot about how to encapsulate my analysis of the supreme court and its decisions at the moment.
I'm furious and frustrated and out of patience - and by necessity I need to set those aside temporarily to make my point.
Since 2016 and the theft of a supreme court seat by Mitch McConnell, I've paid much closer attention to the decisions of the supreme court by reading the opinions directly.
To make a very long story as short as possible, many of these decisions, when read without the assumption of good faith, are clearly outcomes-driven rather than law-driven. Put differently, the conservative justices frequently misrepresent facts of the cases before them, ignore relevant precedent, or make claims that the precedent allows for the OPPOSITE conclusion (which doesn't stand up to even my cursory reads of the precedential cases' decisions).
All of this adds up to a court acting in supremely bad faith, and hiding their decisions and literal logic errors in reams of text.
After July 1st, 2024, there were no fig leaves left to shelter their bad faith actions, and as such I work from the assumption that every decision they make must prove its good faith.
When you look at yesterday's decisions from this perspective, the fact that all nine justices said that due process must be observed in the future doesn't help the current plaintiffs one solitary bit. As they failed to specify what a reasonable interval for habeas requests must be, they have done little to curb the behaviors of Trump et al. Finally, Robert's issuance of an administrative stay while an admittedly wrongfully-rendered man is held in a foreign prison of great notoriety reinforces this status quo.
None of this is remotely acceptable, and I urge you all to treat any and all court decisions in bad faith unless proven otherwise.
Benjamin- you speak 100% truth. The corrupt Supreme Court conservatives make up law ( Congress’ job),ignore precedent, twist facts, & delay decisions far too long. Roe v Wade was the 1st time I saw them ignore precedent & stari decisis. The CO ballot decision, the immunity decision blatantly ignored clear language in the Constitution. The Supreme Court is corrupted
One other point that I'm still struggling to articulate right now:
One of the reasons we have human judges rather than the legal equivalent of actuarial tables is so that judges can exercise judgment. As such, when a decision that seems perfectly legal on paper will do harm to individuals with little protection or resources, they should err on the side of our most marginalized (not for our billionaire class, to be abundantly clear).
From this perspective, any decision that keeps individuals who were never given due process in captivity is, by definition, the wrong one.
One (of many) things that bothers me is our government actually conceded the immigrants had due process rights here even though they didn't afford due process to the 200+ detainees they flew to El Salvador that started this case. The majority opinion states: "The Government expressly agrees that 'TdA members subject to removal under the Alien Enemies Act get judicial review.' Reply in Support of Application To Vacate 1. 'It is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). So, 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))."
Up until now, the government's position has been "we did nothing wrong" and "judges can stop us". So they conceded this critical point at the eleventh hour to make it look as if they "won" in SCOTUS and SCOTUS played along.
And still we don't know how this helps the men already there whose due process rights were violated. In theory, they can file habeus petitions in DC but that's a devastating outcome. Why shouldn't our government be ordered to fix this and bring them all back to start the legal process over for this heinous violation of due process rights? These are human beings whose human rights are being violated in this prison. We shouldn't be sending anyone to such places.
PS... I do agree this was an excellent summary of the legal issues! Thank you Sam and Ryan!
Somehow these discussions about the ins and outs and details of these litigations feel like spurious "negotiations" to distract its victim while the aggressor finalizes preparations for the predetermined full-on attack.
In these situations one needs to pay attention not to what is being said and argued in courts or at "negotiating" tables but what is going on logistically. Motivation and intent is revealed not by what is said, but by what is being done. If your enemy is gathering troops and staging supplies and generally girding his loins for battle, look to your armament, not your attorneys.
Even those of us who have been screaming that this regime intends far more than just deporting immigrants have noted certain difficulties that must be overcome to physically accomplish the advertised mass disappearances. Surely, we are told, it's an open question and only a remote possibilitiy that they really mean to set up a Stalinist gulag state? They are having a hard enough time just finding enough immigrant criminals to fill their quota, much less find places to put them. Where are the prisons and camps ? Where are all the necessary secret police?
Where, in other words, is Dachau, Mr. Smarty-Pants history-addled pessimist?
Learning from history seems to be something that humans hate to do even more than, say, having root canals without anaesthetic. Parallels in history? You mean we gotta think about all that stuff? Do we really have to?
Yes, we really have to. (But of course we won't.)
Dachau, the first concentration camp, commenced operations in March 1933 at the site of a munitions factory in a Munich suburb. Little time was wasted in planning; the Nazis took power on Jan 30 of that year.
I've been to Dachau. It is a harrowing museum and if I could I'd drag every red-hat fool in America through it-- hoping that the experience might result in at least one or two realizing that that regimes don't go to all the trouble of building such places merely to house criminals. And not merely the MAGA percent -- I'd include the non-Trumpers too. The hour is late yet the dire reality still does not seem to be sinking in.
Where is Dachau? Not the one in Bavaria, the one here? The one those of us who are not immigrants need to worry about?
Yesterday the Times reported on the missing shoe.
"TRUMP ADMINISTRATION AIMS TO SPEND $45 BILLION TO EXPAND IMMIGRANT DETENTION
"A request for proposals for new detention facilities and other services would allow the government to expedite the contracting process and rapidly expand detention..."
The regime is not going to spend $45B on temporary facilities merely to process a flux of deportees. They don't want to HOUSE immigrants. To the extent the regime is serious about its xenophobia, it wants to expel immigrants, not imprison them. The people they intend the camps and prisons for are not immigrants.
One feature of America is how long it takes us to build anything any more. Even without the need to worry about fire safety and building codes, it's going to take time to get enough infrastructure in place to gear up on phase 2. So they (probably) won't be coming for (more than a few) of the rest of us for a little while yet.
By the way -- I have to give the Nazis credit for more honesty than we have had from our current gangster regime. Himmler straight up stated that they built Dachau for political enemies. Thus far at least MAGA still pretends they target merely immigrant gangs and pet-eating non-citizens.
They are getting away with it: even the Kinzingers and Charens and the most clear-eyed Bulwark types still entertain questions as to whether us extreme Cassandras are really Trump-derangement-addled crazy uncles.
The courts, for all that yes we need to proceed therewith, are unfortunately pretty much powerless to stop or even much delay what is being planned. They can, however, abet it. They have already rendered the gangster effectively immune from prosecution for any violation of law. And if there is anything that people like Roberts understand, is how many divisions the courts have on the battlefield.
What weight does Judge Boasberg have now? I respected him. Did the Supreme Court negate him?
Also, if Garcia comes back for his due process, don't the others deserve it on their own turf.?
I think Steven Miller and his punishing pals thought they could
unload endless airplanes w/o due process until America was all white again.
I hope the Supreme Court hasn't dropped to their level.
Whoever dropped them off felt secure in their wrong decision.
It's not legal.
Let's hear hear it for due process.The Law of the Land.
Hang in there, Sam!! You're doing a great job, as is The Bulwark. Thank you for the news, commentary, and great guests.
GREAT pointed and spot-on discussion of some pretty tricky issues, guys. And while I'm a due process nerd as an attorney and retired judge, I have to say that analysis would be understandable to any person with half a brain regardless of their legal background.
This take on the two cases should be required listening for any reporter and especially headline writer for outlets talking about the cases. Trump and his media outlets can go ahead and falsely bleat that he "won" bigly when he didn't win anything except on getting part of the cases shipped to Texas. In actuality, Trump was totally hammered 9-0 on the important thing, that he and his underlings are acting totally illegally and unconstitutionally with their snatch and deport tactics.
I'll look forward to more takes including Sam and Ryan, while continuing to appreciate the great stuff from other Bulwark contributors.
Let's be clear: ALL of those people were wrongfully sent to El Salvador. There are no charges lodged against them, only the assumptions that they were gang members and had committed serious crimes. They were detained illegally and sent to a foreign country, to a high security prison, that we, the taxpayers, are paying to torture them for Steven Miller and Trump. If any of them committed the crimes of which they are assumed to have committed, then they should be adjudicated and imprisoned HERE.
Please, please, PLEASE stop with the hedging and equivocating: "a *couple* were wrongly imprisoned," "the administration *may* have acted with subterfuge." This is part of the bigger failure that everybody is so quick to blame on the Democrats. CALL OUT THESE ASSHOLES! You want to be "independent media"? Then STOP pussy-footing around! Be honest. Make some noise! Speak the truth - everything we can see with our own eyes!
And how do we even know they’re still alive? We are paying El Salvador to imprison these people; is a “live head count” part of the contract? Let’s hope there’s some incentive to keep these illegally snatched people alive. I hope they sue the government, but that requires lawyers with guts - which means the furthest away from white shoe firms.
Hm, maybe DOGE should get on the case. If we are paying without head counts and proof of life, then we could be paying for services we aren’t getting.
I’m on board with that! Send DOGE to that prison for a head count.
It also requires access, which they don’t have. I’m sure that is a feature of the administration’s “plan” not a bug.
And also call out the DEMOCRATS because, as you have explained, this is clear and simple. Yet, they can’t just get in front of a camera and say the clear and simple as you have said here.
What you say is true - I am disgusted and impatient with the Dems. Again, what are they waiting for?? But I am also extremely frustrated with the kind of hedging “discussions” like the one Sam Stein led in this video. I thought the purpose of being “independent media” was so that they could speak truth to power, and not worry about retribution. But when you couch things in language that is almost milquetoast in tone and vocabulary, it’s hard for me to see the benefit of being “independent media”. I have come to rely on the Bulwark for news and commentary since the primaries last year. I feel disappointed when I see things like this coming from them.
Sam is worried about being sent to a gulag without due process
The poor Maryland man is probably dead. 😓🙏😓
The last thing they want is Kilmar making the talk show circuit, talking about his experience, telling the country all about CECOT. So it's most likely that he is dead. But they have it under wraps because they don't want to give us a martyr to rally behind.
It's not just that. They are cowardly, militarized bullies. Disgraceful and despicable.
Bottom line of the jurisdictional issue is which party is the Appellant in the SCOTUS case. Ultimately all these cases will end up there. Knowing that does not give me the Warm Fuzzies. They're likely to get away with these crimes. And the extreme constitutional crisis, when the regime refuses to abide by court orders, will come on another issue
Nice shirt Ryan Goodman is wearing that matches his environment. Love the awareness.
Hello, Mirabelle! I always enjoy looking at the different backgrounds and I find they add layers to the conversation. I hadn't consciously noted the color of his shirt, but I found the painting, the small but healthy plant and the simplicity of his setting very soothing.
I agree that the visual can be important to the conversation. I found the background soothing too, and I'll bet that contributed to the receptivity of his points.
Overall good news.
If an immigrant resides in NY and receives notice there, why do they have to file a habeus petition in Texas?
Because that’s where the regime is detaining them
You don't get to file a habeus petition until you're in custody. And you file it wherever you are being held. You'd receive your notice in whatever facility they're holding you in, not wherever you resided before.
Thanks.
Yes, there's a reason why they snatch and zip these folks down to Texas and Louisiana.
Excellent discussion. Thank you for the clarity and earnest analysis.
Thank you. This is so important. Please keep on this and keep explaining this. What the Trumpies are doing is un-American, inhumane, dishonorable, immoral, unethical . . . and just downright bad.
But for $1,000 to Trump’s personal pastor these unethical operators can get some kind of angel. Or a prayer. The “prosperity gospel” strikes again; custom designed for Trump & Ilk.
Meanwhile while the courts dither and don’t take a decisive stance on the men in the El Salvador prison and the Trump Administration blocks any attempts to bring them back, these men being traumatised beyond belief every additional minute they are there. It is a crime and human rights abuse that no one is rescuing them immediately right now. It is unconscionable that this is being allowed to be dragged out with no certainty that our government will ever get them out of there. Can you imagine what it is like to be in an El Salvador prison right now or be their families while the US courts and Administration just delay and refuse to actually retrieve them and provide due process which is fundamental to Democracy. The Trump disobeyed a court order to bring them back when they were on planes and the government is not even making any attempts at the due process guaranteed in the constitution. If that is not a constitutional crises I don’t know what is. Now a court order to bring Kilmar Abrego Garcia back tonight is paused. How is this happening? These men should not spend a minute longer in a gulag. We must stop this abuse. This is pure evil.
Trump is playing the justice system in this case just like he did to avoid trial & judgement in the 1/6 & classified documents cases against him. It is unconscionable that he is allowed to do this
The MAGAS, unconscionable worms themselves, have elevated Jabba the Hutt now as Supreme Worm!!
Pray tell, what OTHER kind of lowlife behavior were you expecting???
Exactly
And the “Christian” Speaker of the House doesn’t have a problem with it. Weakness. Moral turpitude.
Agree. And I hope that every Hispanic voter who voted for Trump last election regrets their support for such an evil man. He lied to win your vote. No one should be treated like the men who are in the hell hole prison in El Selvador.
Meanwhile, the PBS story on this case has the following headline: “Supreme Court backs Trump in controversial deportations case.” Are they working on keeping their funding by currying favor? And all of the MSM stories I came across have a similar headline.
Exactly 💯 that’s what they are all doing. I to was disappointed to see that NPR did it as well
From Justice Sotomayor’s dissenting opinion in this case today (citing the Government's position in Abrego Garcia v. Noem):
"The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise."
Justice Sotomayor’s opinion was joined in full by Justice Kagan and Justice Jackson. Justice Barrett joined Sotomayor’s opinion in part, but not this part.
Full PDF: https://www.supremecourt.gov/opinions/24pdf/24a931_2c83.pdf
I wonder why not, since from what I understand Barrett did agree to the requirement of habeas.
Thanks for the explanation. At what point do we challenge the use of foreign gulags ?
Yes! This gets kind of lost in the habeas corpus violation.
The CIA has reportedly been reviewing its use of lethal force in foreign operations in South and Central America. This certainly seems like the government wants to wage war against Tren de Aragua and declare them a foreign enemy. What shocks me is that the GOP is lining up against allowing one person to impose tariffs, but are totally fine with allowing one person to declare war.
Tariffs are having a direct and undeniable impact on their voters. The voters might like Trump's own-the-libs rhetoric, but they're not willing to sacrifice their retirement savings to validate his insanity. On this issue, Trump is losing control of his base, and Republican politicians are responding to that.
By contrast, a secret war on foreign soil is not something American voters care about.
Are they lining up against tariffs? If so, it's because it's about money. Truth and human rights don't matter. They don't care that truth and human rights are what made America great.
Their billionaire owners are demanding that they act against the tariffs. They don’t give a sh’t about human rights
I was literally thinking the same thing earlier. Out of all the fucked up stuff Trump has done, the one minor bit of pushback from voices on the right is over money. From the people who have plenty of money to lose, no less 🙄