Supremes Remind Stephen Miller Who’s In Charge

 Remember when the Supreme Court stepped in at 1:00 in the morning to stop a bus load of Venezuelans from being put on a plane without due process? Yeah, that one. The one that outraged Stephen Miller so much he mooted getting Trump to suspend habeas corpus. Well, today in that case the majority* said to Stephen Miller: “Fuck you.”

Not literally; maybe not even figuratively. But it’s easy to read the opinion that way. Especially when the majority cites its previous unanimous opinion in this case: “The Fifth Amendment entitles aliens to due process of law in the context of removal proceedings.” Neither Miller nor Trump understand what that means; nor do they like it:

"THE SUPREME COURT WON’T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!" Trump posted.

"Criminal" is a status determined by due process of law. The same due process that prevented Trump from going to trial on criminal charges in Florida and D.C., but found him guilty of 34 felony counts in Manhattan. So maybe we should get criminals out of our country. But they are entitled to further due process before that “remedy.” That is settled law in America.

It is also settled law that no one is a criminal without due process of law making that determination. Nor can anyone, adjudicated criminal or not, be forcibly deported without due process of law.

Otherwise the next administration could just declare Stephen Miller a criminal and deport him to Libya just because…well, shit, who wants him around here, amirite?

*The dissent is Alito’s, joined by Thomas. Alito’s argument is highly technical: he argues against the injunction itself (which the Court grants, returning the case to the 5th Circuit), and the issue of granting habeas relief to a class. His objection to the injunction is that the trial court didn’t have information that ICE was putting people on busses for the airport as the court was trying to determine what ICE was doing with the detainees. The majority points out the government has already said people deported are beyond their reach (true if they are simply returned to their country; far more dubious if they go to a facility like CECOT; but that’s all another matter), and the trial court moved so slowly on the issue of granting or denying the injunction, it effectively denied it. Especially since busses were headed for the airport when the Court ruled the first time.

Alito’s arguments are basically that the government should be allowed to do what it wants until the court has a clear record of what’s going on, and if by then it’s too late, well…that’s the way it goes.

It’s a minority of two, even on this Court. I’m not so sure the majority on the injunction/citizenship case will be any thinner. Well, not thin enough to go the wrong way.  Hope is the thing with feathers, though. And in these matters I am certainly featherless.

Professor Vladeck has a fuller analysis of the ruling, including Alito’s dissent. He points out that the majority expresses clear frustration with the lower courts (trial and appeals) for not taking the problem here (imminent unlawful deportation) more seriously. Which effectively suspends AEA deportations until the Court finally disposes of this case (not soon; it goes back to the Fifth Circuit, first). The majority also took space, in a curiam decision, to chew up Alito’s dissent with far more than “we respectfully disagree.” As the professor points out, Alito is a lot less concerned with the people in this case than the majority is. Which is not a surprising comment on Alito.

I’m skipping entirely over the class certification/habeas argument Alito makes and the majority tacitly discards. Read Vladeck’s analysis if you want to know more about that.