@phailyoor comments on "Culture War Roundup for the week of May 26, 2025

Culture War Roundup for the week of May 26, 2025

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sockpuppet2 2d ago

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.

Context

phailyoor sockpuppet2 2d ago

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.

sockpuppet2 phailyoor 1d ago

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.

phailyoor sockpuppet2 1d ago

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

Deleted by author

Dean Flairless UrgentSloth 1d ago · Edited 1d ago

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.

kky Dean 1d ago

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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