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PaperclipPerfector  1mo ago (text post)   29582 thread views

Culture War Roundup for the week of May 26, 2025

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We haven't discussed deportations, recently, and appellate litigator (and formula Scalia clerk, for those who care about that sort of thing) Adam Unikowsky posted a good explanation of AARP v Trump/WMM v Trump, this morning. The situation seems pretty Kafka-esque:

...

Skipping over many twists and turns, on April 7, the Supreme Court ruled in Trump v. J.G.G., by a 5-4 vote, that the temporary restraining order should be vacated. According to the Supreme Court, the plaintiffs had chosen the wrong procedural vehicle to challenge the deportations: they should have brought habeas corpus actions rather than sue under the Administrative Procedure Act. This was important because Administrative Procedure Act claims can be brought in D.C., whereas habeas corpus actions must be brought in the district of confinement, which for many detainees would be in Texas. I was surprised by this ruling, but it doesn’t matter what I think, so habeas it is.

Importantly, however, the Supreme Court also said this:

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

In other words, Venezuelan detainees facing deportation have a right to due process.

The Oracle

And so the government quickly devised a new notice protocol to comply with J.G.G.

I’m going to start by telling you what that new notice protocol was. But before I do, one point is crucial to understand. Much of this post will describe a dramatic series of events and filings on April 18 that culminated in a Supreme Court injunction. But the government didn’t tell the courts or the detainees’ lawyers about this new protocol until after the events of April 18. The government wrote the new protocol and immediately started implementing it without telling anyone what it was. As far as I can tell, the government first disclosed the new protocol in a federal court filing on April 23—well after the government attempted to start deporting people pursuant to the new protocol. Moreover, even on April 23, the government attempted to file this new protocol under seal, opposing its public disclosure on the theory that it would reveal “confidential investigative methods”; it only became public after the district court unsealed it over the government’s opposition. So you, the reader, will understand what the government was actually doing on April 18, but the detainees’ lawyers didn’t have access to this information at the time.

The government’s protocol was to give the detainees a document called “Form AEA-21B: Notice of Warrant of Apprehension and Removal Under the Alien Enemies Act.” Form AEA-21B advised the detainees that they had been determined to be Tren de Aragua members and would be deported under the AEA. It said that the detainee could place a phone call. Finally, it said that after the detainee was removed, he could not reenter the country without permission from the Secretary of Homeland Security.

According to the government’s declaration, after being served with Form AEA-21B, the detainee is given twelve hours to “indicate or express an intent to file a habeas petition.” If the detainee doesn’t “express any such intention,” then ICE may deport the detainee immediately. If the detainee “does express an intent to file a habeas petition,” then the detainee is given 24 hours to file the petition. If the detainee doesn’t file the petition within 24 hours, then ICE may deport the detainee immediately.

Stop right there.

It is absurd to suggest that this protocol complies with the Supreme Court’s directive that the detainees receive notice “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Among other problems:

  • The detainee has no way of knowing that he could file a habeas petition challenging the deportation. Form AEA-21B makes no mention of habeas corpus or any other type of judicial review. It reads like a death warrant given to a condemned inmate 12 hours before execution, notifying the inmate that the time has come to begin reflecting on a life poorly lived.
  • Even if the detainee is able to divine that filing a habeas petition might be an option, he would have no idea that “expressing an intent to file a habeas petition” would give the detainee a 24-hour reprieve. Is the detainee supposed to tap the shoulder of the ICE officer and say, “Officer, I just want to let you know that I am planning to file a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas”? Detainees aren’t expected to, and usually shouldn’t, tell ICE officers of their litigation plans. Note that Form AEA-21B ominously states: “Any statement you make now or while you are in custody may be used against you in any administrative or criminal proceeding.”
  • Under the protocol, detainees are permitted a phone call. In principle, the detainee could call a lawyer. But:
  • Many of the detainees didn’t have lawyers. And that’s not because no one would represent them! The ACLU offered to represent these people. But the government refused to give the ACLU their names and refused to let the ACLU into the facility to talk to them unless the ACLU already knew their names in advance. Not surprisingly, precisely zero detainees who did not already have lawyers filed a habeas petition. The government’s protocol rested on the presumption that a detainee who didn’t file within 24 hours had voluntarily chosen not to bring a habeas petition, but … really? Given the choice between (1) being defended in court by a crusading ACLU lawyer and (2) being deported to Dante’s Inferno, do you really think that 100% of these unrepresented detainees voluntarily chose Option 2?
  • Even if the detainee had a lawyer, the lawyer might not pick up. Rumor has it that lawyers do not always pick up the phone immediately and sometimes even take more than 12 hours to return a voice message. Of note, even when detainees had immigration lawyers, and even when the government knew who those lawyers were (because, for instance, they had filed appearances in immigration cases), the government did not provide these notices to the detainees’ lawyers.
  • Even if the lawyer did pick up the phone, the lawyer would have no reason to advise his client to inform ICE, “I intend to file a habeas petition.” Remember, the government’s protocol—in which expressing this intention buys the detainee an extra 24 hours—was a closely-held secret.
  • Even if the lawyer picked up the phone and the detainee successfully expressed an “intent to file a habeas petition,” the lawyer would not know that a petition had to be filed within 24 hours. Apparently some of the detainees were told that they would be deported “tonight or tomorrow,” but nothing in the protocol required ICE to disclose this information to the detainee. And no reasonable lawyer would think the habeas petition had to be filed within 24 hours, given the Supreme Court’s admonition that notice had to be “reasonable.”

To sum up, in order to file a habeas petition, the detainee would not only have to already have a lawyer, but the lawyer would have to be The Oracle from The Matrix.

The government surely knew that its protocol didn’t comply with the Supreme Court’s decision and would never stand up in court. Why, then, did the government nonetheless barrel forward?

Because, from the government’s perspective, if the detainees could be deported before a court weighed in, there would be nothing the court could do about it. Recall the celebrated case of Kilmar Abrego Garcia, who was deported to El Salvador in violation of a court order. After the Supreme Court held that the government was required to “‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” the White House responded by a posting a tweet/X saying that he’s “never coming back.” From the government’s perspective, it was irrelevant whether its protocol violated Due Process; once the detainee was deported, his case was over.

...

Setting aside ICE acting in bad faith, invocations of rights using colloquial language can be deemed lawfully ineffectual by courts, even if the intent is obvious to any reasonable person:

According to prosecution filings, Demesme at one point told interrogators:

“If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not whats up.”

Prosecutors, in their response to the defense request for a Supreme Court review, had argued that Demesme’s statement was not an unequivocal request for an attorney and that his later confession was, therefore, admissible.

The Louisiana Supreme Court declined to hear the appeal. People sometimes complain about lawyers using the right "magic words" being too powerful, but the rest of us being required to use magic words is a much bigger problem, in my opinion.

...

They also said Demesme, who had been advised of his rights, was immediately advised again that “whether he wanted a lawyer was his choice,” and that he continued answering questions.

Demesme’s reference to a lawyer didn’t clearly invoke his right to counsel, “because the defendant communicated that whether he actually wanted a lawyer was dependent on the subjective beliefs of the officers,” prosecutors wrote.

Back to this case, the ACLU's brief didn't include the specific circumstances of their communications with their two clients or how many people would have been deported on the same flight, but the two clients were able to describe notices of an impending deportation.

Alarmed, the ACLU contacted the government and asked whether the government intended to deport detainees other than the named plaintiffs. At 8:41 pm Central on April 17, the government lawyer sent an email refusing to answer the question.

The plaintiffs had no choice but to go back to the district court. Shortly after midnight on April 18, the plaintiffs filed an emergency motion for a temporary restraining order, asking the court to stop the deportations.

But the plaintiffs had a problem. The district court had a standing order saying that if a party filed an emergency motion, the opposing party had 24 hours to respond. Yet it appeared that the government was going to deport the detainees before the 24-hour period expired. The plaintiffs therefore asked the district court to rule immediately, observing on page 1 of their motion that “these removals could therefore occur before this matter may be heard and before the government’s response within 24 hours.”

And then the plaintiffs waited.

The hours ticked by, and the court didn’t respond to the plaintiffs’ filing. It did not indicate, one way or another, whether it would rule in less than 24 hours. It simply said nothing.

The next morning, the plaintiffs asked the government whether it would sign on to a motion for a status conference. The government said a status conference was unnecessary.

Morning yielded to afternoon, and still the plaintiffs did not know whether the court was planning to wait the full 24 hours. Nor did they know whether the government was going to deport detainees before the 24-hour period expired.

So the plaintiffs moved for a status conference at 12:48 pm, telling the court that if it didn’t rule by 1:30 pm, they would file an appeal. The court didn’t respond.

The plaintiffs gave the district court a little longer, then appealed to the Fifth Circuit at 3:02 pm and also sought relief from the Supreme Court. The Fifth Circuit held that it lacked jurisdiction because the plaintiffs didn’t give the district court enough time to rule.

At 11:52 pm Central on April 18, the Supreme Court granted a temporary injunction barring the government from deporting the detainees. The Court then stewed on the case until May 16, when it issued the decision that is the subject of this post.

What would have happened if the plaintiffs hadn’t appealed on the afternoon of April 18? We don’t know for sure, because the government has never told us, but we can make an educated guess. It was subsequently revealed that in the afternoon of April 18, about 70 detainees were loaded onto a bus headed for the airport. The bus actually reached the airport but then turned around, perhaps because the government was nervous about deporting the detainees while they had a motion pending in the Supreme Court.

There was no reason to bring these detainees to the airport unless the government was planning to deport them. They were not going to sit in the airport lounge enjoying the free WiFi.

So here’s what would have happened if the plaintiffs hadn’t appealed. The government would have deported the detainees and then submitted a response brief in the district court after midnight on April 19 saying: too bad, we’ve deported 70 class members and they are forever barred from obtaining relief.

On the evening of April 18, after the plaintiffs went to the Supreme Court, a government lawyer represented to a judge in D.C. that there wouldn’t be any deportations that evening, but the government reserved the right to deport detainees on April 19. If the Supreme Court hadn’t granted its late-night injunction, the deportations may well have occurred the next day.

As for the ruling, itself, Unikowsky writes:

...

Like many controversial cases, A.A.R.P. v. Trump is larded with esoteric technical issues. The first question in A.A.R.P. was whether the plaintiffs’ appeal at 3:02 PM on April 18 was proper. If the appeal was premature, that would imply that both the Fifth Circuit and the Supreme Court lacked jurisdiction, which would mean the Supreme Court would have no choice but to dissolve the injunction. This might seem like an obscure issue, but the whole case turned on it.

This jurisdictional controversy arose because plaintiffs ordinarily aren’t permitted to file an appeal until a preliminary injunction motion is denied. But the district court never actually denied the plaintiffs’ motion. The court just sat on it until the plaintiffs ran out of patience and filed their appeal.

To get around this problem, the plaintiffs argued that the district court “constructively denied” the motion by failing to rule on it. Thus, the question before the Supreme Court was whether this “constructive denial” theory was legitimate. Or, translated into English: was there a real emergency that justified the plaintiffs’ appeal on April 18, or did the plaintiffs jump the gun?

This was a tough question because it was unclear, on the afternoon of April 18, what the government was going to do. That was the fault of the government, which was withholding information from the court.

Suppose that the government had announced: “unless there’s a court order that stops us, we will start deporting detainees at 5:00 PM on April 18.” In that case, it would have been unreasonable for the district court to give the government until the morning of April 19 to respond while doing nothing to preserve the status quo. The district court’s refusal to rule on the plaintiffs’ motion by 5:00 PM would have had the same practical effect as denying the motion. As such, an appeal would be warranted.

Now suppose the government had announced: “we promise to hold off on deporting the Venezuelans for three days to let the judicial process run its course.” In that scenario, the district court’s decision to wait until April 19 would have been reasonable, and the plaintiffs would have had no ground for a hair-trigger appeal on April 18.

What made the issue difficult was that the government was keeping its intentions a secret. It refused to tell the plaintiffs what it was going to do, even when they asked.

Now you might say that the government was under no obligation to disclose that information, and that it wasn’t the government’s job to help the plaintiffs prosecute their case. But actually, I think it was the government’s job for a few reasons.

  • Lawyers—particularly government lawyers—are officers of the court. They are charged not only with obeying court orders, but also with upholding the integrity of the judicial process. The integrity of the judicial process depends on judges making decisions based on accurate information. If the court is struggling to figure out whether there’s a real emergency, the government should tell the court whether there’s a real emergency.
  • Merely one day earlier, the district court had said: “the Supreme Court’s opinion in J.G.G., along with the government’s general representations about the procedures necessary in these cases, strongly suggest that the putative class is also not facing such an imminent threat.” The court was clearly under a misimpression regarding the government’s intentions—based in part on the government’s own prior representations. The government should have corrected that misimpression rather than viewing it as something to exploit.
  • In referring to “the Supreme Court’s opinion in J.G.G.,” the district court was telegraphing its view that deporting the detainees would violate their due process right as recognized in J.G.G. The district court evidently couldn’t bring itself to believe that the government would deport the detainees so quickly. I don’t think it’s an appropriate response for the government to say, “the district court thinks deportations are unconstitutional and is trusting us not to violate the Constitution, so let’s start the deportations!”
  • The district court was acting respectfully towards the government. Rather than issuing a hair-trigger TRO, it was giving the government 24 hours to respond and was trusting the government not to undermine the court’s jurisdiction. If the government was going to deport the detainees, it should have said something.
  • Finally, and most importantly, the government’s goal was to deport these detainees before they ever had their day in court and then argue their case was moot. In other words, the government was effectively saying: “we’ll deprive the detainees of the due process right that the Supreme Court has recognized—and we’ll do so for the specific purpose of permanently preventing them from ever getting the process the Supreme Court held was due.” I don’t think this tactic is consistent with upholding the integrity of the justice system.

The government should have been forthright with the court, but it wasn’t. This put the court in the difficult position of having to figure out whether there was a genuine emergency that warranted an immediate response.

...

There's a lot more (including why Unikowsky disagrees with Alito's dissent and why the lack of transparency by ICE and its litigators is wrong), and it's worth reading in full, but that's the jist of it. SCOTUS having granted an injunction, the question of whether the secret 12-36 hour habeas petition window ICE stipulated satisfies due process requirements goes back down to the Fifth Circuit Court of Appeals.

But were deportations always so Kafka-esque, or is this new? Did previous administrations act in bad faith, like this? And where are the voices that are both pro-deportation and pro-legal protections against fed fuckery? As HL Menken said:

The trouble about fighting for human freedom, is that you have to spend much of your life defending sons-of-bitches; for oppressive laws are always aimed at them originally, and oppression must be stopped in the beginning if it is to be stopped at all.

Necessary starting caveat: Unikowsky is an absolute putz when it comes to anything Trump-related, and his analysis should be recognized as on the "ought" side of any is-ought divide, and, more damningly, an "ought" that will not apply to any case where he doesn't like the victim.

But were deportations always so Kafka-esque, or is this new?

Traditionally, deportation was a civil matter that mooted most challenge as soon as the deportation was completed. So, yes. I think there was a statute to expand jurisdiction to cover the parade-of-horribles example of a US citizen being deported so they could start the suit from a third country, but I'm having trouble finding the text.

Did previous administrations act in bad faith, like this?

The previous administration turned a statute requiring it to deport aliens convicted of a specific list of crimes into a purely advisory suggestion, and BenGarrison here keeps insisting we just need to change the statute to require it more, bro. Or is that not what you're talking about? If you want examples of past deportation schemas that didn't have criminal conviction levels of due process, the Eisenhower-era process is usually the go-to example.

And where are the voices that are both pro-deportation and pro-legal protections against fed fuckery?

I think they gave up somewhere in the mid-1960s, where Woodby v. INS turned the statute's "reasonable, substantial, and probative evidence" into "clear, unequivocal, and convincing evidence". Whatever patience there might once have been for the process arguments fell apart when the same judges and advocates have skipped over them in contexts involving citizens facing criminal charges.

Necessary starting caveat: Unikowsky is an absolute putz when it comes to anything Trump-related, and his analysis should be recognized as on the "ought" side of any is-ought divide, and, more damningly, an "ought" that will not apply to any case where he doesn't like the victim.

What does this mean?

The previous administration turned a statute requiring it to deport aliens convicted of a specific list of crimes into a purely advisory suggestion, and BenGarrison here keeps insisting we just need to change the statute to require it more, bro. Or is that not what you're talking about?

Did they play games in court, in order to do so (e.g., dragging their feet, after being court-ordered to deport a criminal, or misleading the courts about the status of aliens), or were they just willfully lax about enforcing the law?

I think they gave up somewhere in the mid-1960s, where Woodby v. INS turned the statute's "reasonable, substantial, and probative evidence" into "clear, unequivocal, and convincing evidence". Whatever patience there might once have been for the process arguments fell apart when the same judges and advocates have skipped over them in contexts involving citizens facing criminal charges.

Could you please elaborate on this?

What does this mean?

Unikowsky is not describing the state of the law, but by what he thinks would be good policy were it the law. As a result, the only meaningful read you should take from his writings are specifically what he thinks would be good policy for achieving his goals.

Did they play games in court, in order to do so (e.g., dragging their feet, after being court-ordered to deport a criminal, or misleading the courts about the status of aliens)

Yes, they did. The Biden administration policy in US v. Texas was specifically about 'prioritization' of aliens with final orders of removal, including those with final orders of removal for criminal behavior, to such a point as to not ever do it for wide portions. Instead, the Biden administration issued a memo telling all DHS staff that they would not deport such illegal immigrants, and then told the courts that they Tots Weren't Making Decisions On This Memo, and then made decisions completely in line with the memo's directives.

Now, the final orders of removal themselves were Article I administrative law judges. If you want specifically Article III court orders in the context of immigration, you'll have to look a little further back. The Obama administration, when DAPA/DACA was being challenged, swore before court both in writing and orally in the court proper that they would not issue any new determinations under the new policies, in order to avoid having the judge issue a preliminary injunction. And then the issued literally over a hundred thousand.

The only way to interpret this Advisory is that, despite the Government’s multiple assurances that no action would be taken prior to February 18, 2015,in reality, between November 24, 2014, and February 16, 2015, the DHS granted approximately 100,000 applications pursuant to the revised DACA, the terms of which were established in the 2014 DHS Directive that is the subject of this suit. Indeed, the opening sentence of the Advisory notes that these actions were taken “pursuant to the November 20, 2014 . . . memorandum at issue in this case.” [Id. at 1]. Counsel for the Government confirmed this interpretation in open court.

Could you please elaborate on this?

Civil proceedings against citizens have extremely minimal due process protections, and almost always operate on a "preponderance of evidence" standard rather than "clear, unequivocal, and convincing evidence" one. Your own example (lawyer dog) was a criminal context where the courts have found a right to an attorney less urgent than advocates or judges are calling for illegal immigrants here. There are extremely few situations where an American citizen facing criminal charges can defend themselves by complaining that a form does not provide sufficient information about what must be done to achieve some legal defense; indeed, SCOTUS has recently allowed felony convictions over harmless paperwork errors based on interpretations of the law that were not clearly evident to experts.

There are ways to square this circle, but they ultimately give a solution where the rights of illegal immigrants are paramount, and the rights of citizens may sometimes, eventually, maybe, possibly be protected if the current makeup of the relevant appeals courts likes you in particular.

But were deportations always so Kafka-esque, or is this new?

There's definitely been a lot of this since Trump came onto the scene. Trump's first term had a lot of this sort of nonsense, trying to do deportations in the middle of the night before the EO's got shredded by the courts. Then Biden's reaction was Kafka-esque in the other direction, letting immigrants say some magic words "credible fear" to basically ensure open borders via loophole. Instead of doing legislation to fix any of these things, both sides just try to keep pulling fast ones, and then seethe when courts intervene or the other side undoes their EO's with EO's of their own. Just complete nonsense from start to finish. Of course the MAGA-leaning sectarian cheerleaders like Catturd are now screeching that the judicial system should be broadly destroyed since they won't give Trump rubber stamps on everything he wants.

We haven't discussed deportations, recently, and appellate litigator (and formula Scalia clerk, for those who care about that sort of thing) Adam Unikowsky posted a good explanation of AARP v Trump/WMM v Trump, this morning. The situation seems pretty Kafka-esque:

Who is Adam Unikowsky and why should anyone trust / care about their explanation / characterizations of a contemporary culture war topic filled with bad and bad-faith explanations / characterizations?

Unikowsky is an appellate litigator who writes about appellate litigation. Here's the bio on his firm's website and his Federalist Society contributor page, if you want to know more about him.

My suspicion is that the the OP is making a broader culture war argument by selecting a take they agree with, but do not want to make themself, and so are attempting to smuggle in an insinuation of authoritative neutrality by presenting someone without characterization to make the argument by proxy, even if that person is more biased then the OP might care to admit and would undermine their opening position.

I base this suspicion in part by how the OP introduces Unikowsky to make an argument about deportation process, but then concludes with an appeal to HL Menken on the nature of resisting oppression. This is not Unikowski's position from the position of what is cited, but it is the conclusion that the OP cares to focus on using Unikowski as the buildup.

This suggests the OP is conducting a bait-and-switch argument, using Unikowksy's position as the opening bait (neutral observer on deportation process) for the concluding switch (deportation is a part of Trumpian oppression that must be resisted). But are you concerned that I'm presenting a biased person as being neutral, or that I'm using someone else's genuinely neutral words to make an "argument?"

Unikowsky scrupulously doesn't give his opinion on deportation, as a matter of policy, but - as I note in the top level comment - explains why the games the ICE and their litigators are playing in court are bad. I did not quote all of his criticisms of the government, because the comment was already very long. My position is that all of the fuckery is bad.

Thank you for providing a characterization of your source.

Who is Adam Unikowsky and why should anyone trust / care about their explanation / characterizations of a contemporary culture war topic filled with bad and bad-faith explanations / characterizations?

That is a fully general counterargument. Quite frankly, if you do not like to read opinions on culture war topics by people who may in fact not be 100% neutral observers, The Motte might not be for you.

If you bother to click on the substack link, you will find that Unikowsky did for example link the court document detailing the procedure.

Sure, not every claim is backed up by evidence of that level. But if your suspicion is that detainees were generally verbally advised to get their lawyer to file a habeas petition and inform ICE of their intend to file, it is up to you to write or link an effort-post detailing how in the time period in question, tons of immigrants served with AEA 21-B filed a habeas petition, with links to their cases and everything.

From my own priors, I think that the story as presented -- the Trump administration engaging in malicious compliance to get a few more immigrants out of the country before the courts stop them -- would not be very surprising.

That is a fully general counterargument. Quite frankly, if you do not like to read opinions on culture war topics by people who may in fact not be 100% neutral observers, The Motte might not be for you.

Who says I do not like to read opinions on culture war topics by non-neutral observers?

Fortunately, the counter-argument is not fully generalizable. It can be countered by providing an introduction of a source, characterizing the source regardless of its level of bias.

If you bother to click on the substack link, you will find that Unikowsky did for example link the court document detailing the procedure.

And if the OP (sockpuppet) had bothered to introduce their argument, no one would be expected to conduct their own internet archeology to find it. I have a similarly dim view of people who link to long youtube videos for supporting context in lieu of their own arguments.

As a matter of practice- both in terms of advancing an argument and as as a framing device when introducing someone else for an argument- it is incumbent on the opener to provide some level of contextual justification for the audience as to why. This is particularly relevant if the opener is going to outsource their argument to someone else.

If OP's argument is going to be based on Unikowsky's views, then it will behoove the OP to justify why Unikowsky's views are significant.

Sure, not every claim is backed up by evidence of that level. But if your suspicion is that -snipped-

My suspicion is that the the OP is making a broader culture war argument by selecting a take they agree with, but do not want to make themself, and so are attempting to smuggle in an insinuation of authoritative neutrality by presenting someone without characterization to make the argument by proxy, even if that person is more biased then the OP might care to admit and would undermine their opening position.

I base this suspicion in part by how the OP introduces Unikowsky to make an argument about deportation process, but then concludes with an appeal to HL Menken on the nature of resisting oppression. This is not Unikowski's position from the position of what is cited, but it is the conclusion that the OP cares to focus on using Unikowski as the buildup.

This suggests the OP is conducting a bait-and-switch argument, using Unikowksy's position as the opening bait (neutral observer on deportation process) for the concluding switch (deportation is a part of Trumpian oppression that must be resisted).

The way to test a bait-and-switch argument is to challenge the presenter to justify the bait.

From my own priors, I think that the story as presented -- the Trump administration engaging in malicious compliance to get a few more immigrants out of the country before the courts stop them -- would not be very surprising.

Neither would I, but this in and of itself is not a reason to trust / care about the views of Unikowsky, absent further argument about why Unikowsky's framings should be believed or cared about.

It looks like we both agree that if Unikowsky had posted his article directly on the motte under a new user account, that would have been fine.

What we disagree on is how much introduction should be required when a motte user quotes a source. My position is that as I am already reading takes from random persons on the internet, if a source is not contextualized (or I do not trust the poster's contextualization of the source), I will simply treat it with the same level of skepticism I would have for a new motte poster.

I have a similarly dim view of people who link to long youtube videos for supporting context in lieu of their own arguments.

Total agreement here. They are the worst.

(Second worst are links directly to twitter threads, which depending on how Musk is feeling might only show me the first tweet and tell me to create an account.)

This suggests the OP is conducting a bait-and-switch argument, using Unikowksy's position as the opening bait (neutral observer on deportation process) for the concluding switch (deportation is a part of Trumpian oppression that must be resisted).

I browsed a bit through the substack, and it seems that at least 50% of the articles are Trump/CW related (and generally Democrat-leaning), 10% are about LLMs in judicial processes, with some other legal topics being sprinkled in here and there. The main difference is that while @sockpuppet2 with his Mecken quote points out that the deportees deserve due process even if they are as guilty as sin, the substack focuses more on the fact that many of them might not actually be Tren de Aragua, but simply people with unrelated tattoos.

Counts for what to who?

Is 'Scalia' in this context supposed to count as a proxy for 'shares Scalia's worldview and judicial philosophy?' Or does it count more as a talismanic shield, akin to 'he worked for a conservative, therefore he must not be politically biased?' I imagine 'Scalia clerk' counts for either, but to different people.

What else is 'Scalia clerk' supposed to mean? Was Scalia known for only employing clerks who agreed with his philosophy, and thus they are proxies for his professional reputation? Are Scalia law clerks as a class any less prone to culture war shenanigans than the rest of the legal profession? Was Scalia known for characterizing deportation as being cast into Dante's inferno, or viewing deportation as oppression?

If I look up Adam Unikowsky's professional bio, should I expect to see Scalia-esque disagreement with the lawfare practices of the last administration to shape the election, or should I expect to see concurrence as many other respectable professionals felt it was right and proper?

At a minimum, "scalia clerk" means "Justicr Scalia, hero of the conservative legal movement, thought this person was smart enough to aid him."

Scalia was also well known for hiring people he thought were wrong on substantial political issues. 'Smart enough to aid him' does not mean or imply 'political judgements were considered sound and trusted by even Scalia's standard.'

This would be a smuggled insinuation, both invalid and dishonest if claimed explicitly. (Which it has not been, hence pressing for further clarification).

If I go through your posting history, how many examples am I going to find of you demanding an explanation of the significance of a commentary source?

Not many. Most people do not hinge their opening posts on a non-characterized source, or happily clarify when asked.

It does happen from time to time, though. Even got an AAQC for a frisking the Seymour Hersh claims that the US blew up the Nordstream pipeline, which was largely based on critiquing the (claimed) source of Hersh. Casting shade on sources is on brand, though in this case I pressed the OP to justify the source he was using to argue by proxy for an argument conclusion the source didn't justify.

Will they all be sources critical of Trump?

Heavens no. Feel free to look for yourself, though.

Scalia was, in fact, semi-famous in the legal world for always hiring at least one "counter clerk" (aka, someone who disagreed with Scalia on significant issues) in part so that he'd have someone smart in the room to play devil's advocate.

Of course, he didn't always pick winners; one such "counter clerk" was Ian Samuel, who later as a professor admitted to perving on his students, was broadly disgraced, but appears to have clawed his way back to respectability as an in-house regulatory counsel for big corps.

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Scalia finding his opinion valuable in a specific, highly unusual circumstance does not make his opinion valuable for conservatives generally. Scalia's known method was to use contrary arguments to sharpen his own, not to adopt as his own.

It's supposed to mean that he clerked for a Supreme Court justice, which is a position that only goes to those with the highest academic qualifications, and means that he has actual experience working in constitutional law, which is something that few lawyers possess. He also specializes in appellate Supreme Court work as part of his current practice. I'm not sure what kind of resume you're looking for when it comes to one's qualifications to comment on the judicial system.

That is a credentialism argument for a trusting a member of a profession that, in the US at least, has been long and broadly considered untrustworthy on matters of ethics, prioritizing the public good, or holding their own accountable.

In a year where extremely partisan use of the judiciary, with substantial support by members of the legal profession in good standing, is a topic on the supreme court docket, and where good-standing in the legal profession is tied to the not-necessarily-apolitical interests.

Which is why the question was not for a resume, but for a reason to trust, and why their characterization of a live culture war topic should be deferred to. "He is a capable lawyer in good standing" is an anti-endorsement.

This is just anti-credentialism at its most stupid. If anything the legal industry is one of the best places to be credentialist, because so many cases turn on very specific case law and precedent that the non-credentialed have almost no hope of fully understanding. Let alone the whole demand for isolated rigor lens. Respectfully, your intuition is twisted.

Funny thing about law, though. For every decision, there are apparently intelligent and credentialled people willing to argue both for and against it.

To be explicit, Scalia famously made a point of hiring some clerks that didn’t share his view to try to better understand different perspectives.

Indeed. Which is why their former employment does not suffice for why someone should care about their explanation / interpretation on a culture war issue.

'They worked for a smart person' is not a credit that bolsters one's own credibility, particularly when said smart man was known for routinely hiring people he thought were substantially wrong on major issues.

The fact that the country's foremost conservative legal figure, considered by most to be an intellectual titan of his age, specifically chose someone to be a principled devil's advocate pushing back against his own assumptions would definitely be a credit bolstering their credibility. It speaks to a level of intellect and open-mindedness far beyond that of most commentators.

Perhaps!

...but this is not the argument the OP made for their source.

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I don't think anyone in any case is generally informed of the right to habeas. There's no miranda-style warning that lets inmates of all crimes and demeanors know that the right to habeas exists. In fact there isn't exactly a notice that goes out to everyone about all your different rights whenever you might need them. There's no notice letting you know you can just refuse a search from the police, many people might have no clue you can just say no. There's no sign pointing you to the nearest gun store posted at the entrance to every bad neighborhood.

Maybe there should be something like this, but there isn't. So it's up to you to know your rights and use them when needed, because the government can't be relied on to educate you.

The "Miranda Warning" includes the right to counsel: https://www.law.cornell.edu/wex/miranda_warning Immigration proceedings are civil, not criminal, but perhaps Miranda Warnings should also be required, inasmuch as Fifth Amendment rights also apply.

The miranda warning isn't even required, it is just required if they want to interrogate you in order to preserve your fourth amendment right.

If the police really wanted to, they could just tell you nothing, lock you in a room, and just never mention that you were free to leave the whole time. Or they could file charges without telling you and you'd only hear about the whole lawyer thing once your court date approaches

12 hours doesn't seem like enough to me.

'Enough to what to what purpose?' is the natural question.

'To deliver due process' is a predictable response, but this itself isn't defining what 'due process' actually entails in a deportation case. For something to be 'insufficient,' there must be a standard of what 'sufficient' is. However, what is sufficient due process in one context is not sufficient in another.

This has been why a lot of the political opposition to migrant deportations has been on trying to equivocate deportation due process to other due process contexts. Consider the media focus several weeks ago of an illegal migrant mother who was deported and took her infant US citizen child with her. This was raised and framed as 'administration deports American citizen without due process!', as if the due process was a US child custody court case between US citizens, rather than the due process of letting a foreign citizen keep custody of their child when there was no immediate US family. Naturally, that line of argument fell quiet soon after when the 'just give the father custody!' process arguments ran into the issues of the father's legal relationship to the mother (and for being in the US).

The political struggle / contest is who gets to define due process requirements when.

If I directly asked you if you thought due process required being defended in court by a crusading ACLU lawyer, I doubt you would say yes in those terms. Certainly the law does not require that. If it did, there would be no 'you can ask for it with your phone call' option, because it wouldn't be an option, it would be the requirement. However, arguments of 'you are violating due process if you do not give them that' are in practice demanding a procedural requirement.

The issues with this are multiple. First and most importantly, it tends to be a bad idea to let people who are not in the position of creating legal requirements for the state to create legal requirements for the state. Similarly, institutional and professional legitimacy can easily be burned in advancing institutional power increases as a means to win political arguments- see the (probable) result of national injunctions, or the long-running Democratic attack on Republican partisanship in the Supreme Court (pick your preference).

But a third point is that process demands are not inherently legitimate when arguments are used as soldiers, and can gradually undercut the nominally claimed principle's value to/from/by society.

This has already happened globally in terms of how global views of refugee and asylum laws has evolved over the last quarter century. Asylum and refuge was a principle won from the post-WW2 context, it was leveraged to advance economic migration, and public support has declined as people bite the bullet and diminished asylum's social / political sanctity to prevent it's use as an argument-as-soldier for a cause. Similarly, free trade was a political value, until the costs were increasingly untenable, and now market efficiency arguments are hobbled as the people who justified their preferences on the basis of free trade have discredited themselves and the arguments they used as soldiers.

There is no reason it cannot or will not happen with other dynamics.

The point of this isn't that you shouldn't feel that 12 hours and a phone call is enough due process for illegal migrants. The point is that you should be clear what is enough due process for illegal migrants, and where it ends vis-a-vis due process for legal migrants, and where that due process compares to citizens.

There are (well established) distinctions. Careless equivocation will be indistinguishable from those who would use that argument as soldiers, and it stands to lose if / when they lose the social argument as a whole, and take their supporting arguments with them for all others who might have wanted that (no longer shared) principle.

I think not, but I'd like to hear an argument for why it is a reasonable amount of time.

Because there has not been an argument for why twelve hours it is not a reasonable amount of time for due process in the context of deportation, besides that it interferes with a habeas relief process, which the law does not require occur for due process in the context of deportation.

So I return to my question: is 12 hours a reasonable amount of time for them to seek relief?

Do you think it is reasonable to demand that people should be detained longer against the inclination of a government that wants to release a person sooner, even though this will increase the amount of time people are detained overall instead of free?

Remember- [habeaus relief] and [due process] are not synonyms. [Habeaus relief] is a specific relief against wrongful detention. As a matter of heabaus harm minimization, less time in wrongful detention is better than more time. This principle even applies to rightly-detained individuals- hence the right to a speedy trial. A 'more reasonable' time period for involuntary detention is shorter, not longer.

An habeas-based argument to extend a 12 hour limit is saying a 12 hour potentially wrongful detention is too short, and that everyone wrongly (or rightly) detained should be detained longer.

If this seems a weird, this is because [habeas relief] is in this case being instrumentally treated as [deportation appeal]. The habeas concern itself is resolved upon deportation. Extending the habeas harm (the effect justifying habeas relief) is the tool to try and prevent deportation.

You just chose to ignore in favor of arguing their identity.

Questioning who the OP is appealing to and why they should be is taken as an arguer-by-proxy is the antithesis of an argument over their identity. It is an invitation for their identity to be established in ways to improve their credibility beyond poor stereotypes.

Variously people have done so poorly, appealing to credentialism of a distrusted profession or the smuggled assumption of a former employer, but that is the issue with poor stereotypes instead of individualized endorsement.

Blah, blah. Still refusing to make an argument that 12 hours is sufficient for the Supreme court's order. Shame on you, and shame on the Motte for not having drummed you out with laughter.

'Blah, blah' is certainly an amusing dismissal warning of increasing habeas harms to people claiming a need for habeaus relief for non-habeas motives.

Interesting. Did you read the same post I did? It appeared to me to be a series of statements of fact with minimal “trust the experts” color. Are you alleging that there are outright lies in the OP? If not, or so, be more clear, because it sure does look like you’re making a scummy and intellectually weak effort to deflect the points at hand. The rest of the reply chain seems to support the latter interpretation.

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So every alien in the US has a legal right for a stay of deportation for at least what, two days? Probably more like a few weeks? As long as they say the magic words? From first principles I’d say we should have a judge rubber stamping the deportation warrants with a chance for a public defender to object when appropriate. But I don’t see how a functional deportation process functions under a standard deportation process. How different would a ‘good’ process of deporting millions look?

Again this whole thing would be easier, ironically even for Trump, had Trump not personally torpedoed a major compromise immigration bill before coming in to office. Which among other things would have increased the number of available judges.

We have been over this - the bill wasn't really a compromise; it was a back-door way of legalizing the hitherto-flagrantly illegal stunts the Biden Administration, like the Obama administration before it (but more so) had been using to throw the borders open.

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