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Notes -
It's not clear that it would matter where an individual seeking habeas specifically is at the point of a court order. The order is directed against US government officials, at least insofar as they have custody of the individual (e.g. they haven't been turned over to someone else) at the point in time when the order was made.
I do expect that the courts will accommodate the deportations and set up some minimal due process at least for the individuals to make any claims of US citizenship or other status that would entitle them to stay. That seems like a very basic process that could happen fast enough to satisfy the administration's needs while also muting some of the more crazy claims (made without evidence) that even US citizens are being swept up and deported.
It all seems like a very shallow dispute. I'm sure the Supreme Court would not throw up any major hurdle while also abiding recent precedent that lets the DCs fashion appropriate review (ala Boumediene & Padilla) short of a full-scale (and slow) trial.
The core dispute here - is a determination by the President that an "invasion" exists under the Enemy Aliens Act justiciable - is not shallow. It is as fundamental as constitutional disputes get. Either legal immigrants enjoy the rights that the Constitution grants to "persons" (as opposed to "citizens of the United States") or they do not. And if the administration's interpretation of the Enemy Aliens Act is correct, then they don't - because the President has the right to grab any non-citizen they want and ship them off to a foreign prison without meaningful judicial review.
Ignoring the merits for a moment (and you shouldn't - it is probably the most important constitutional case since the War on Terror), the procedural issues are not shallow. The problem of cases of national significance being heard by forum-shopped district court judges has been getting worse for a long time and has hurt both sides (nothing being done to Trump is fundamentally different from what Judge Kacsmaryk did to Biden), and probably requires Congressional action to fix - a process for enjoining facially illegal executive policies is necessary, and right now that process is to file suit in any district court with jurisdiction. If district courts just stop hearing this type of case then there are a whole load of illegal or unconstitutional policies that can't be litigated. (Including, among others, the Biden student loan scheme - these issues are profoundly bipartisan). And the procedural moves taken by the administration are utterly outrageous to the point where a private litigant who tried it would go to jail without passing Go - the administration moved the subject matter of litigation out of the jurisdiction while the hearing was going on in the courtroom and the government lawyer claimed not to know what was going on.
So the issues we have at stake are:
They absolutely do. Even illegal immigrants get those rights -- you can't go around subjecting them to cruel punishments!
I think there is going to be a compromise where there is some judicial review, that's what I wrote!
But those on the left have to understand that the process due here is not going to be some unlimited thing. It's going to be in line with what the courts ended up with after the Supreme Court laid out Boumediene, Padilla and Rasul and so forth.
Ultimately I think this is going to go in your favor. Detainees are going to have a probable cause hearing in which they can assert citizenship or other lawful status.
That's a normative judgment for which there is voluminous discussion. I don't necessarily disagree, but it's hardly an obvious claim.
Given that Trump and Bukele are publicly boasting about the tough conditions in Salvadorean prisons (which would be dubiously legal in the US under current 8th amendment jurisprudence), Trump is unaplogetically doing just that by proxy.
I agree he shouldn't be. That is why I say this case is important - because Trump thinks that he has found a legal blackhole that nullifies the rights of foreigners living in the US, and there is a reasonable chance that he either wins on the merits when the case gets to SCOTUS or successfully ignores an adverse court ruling.
Munaf controls though.
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