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

Dean Flairless sockpuppet2 2d ago

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?

Deleted by author

Dean Flairless UrgentSloth 2d ago · Edited 2d ago

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?

zeke5123a Dean 2d ago

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.

Dean Flairless zeke5123a 2d ago · Edited 2d ago

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.

Thoroughlygruntled Dean 1d ago

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.

Dean Flairless Thoroughlygruntled 1d ago

Perhaps!

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

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