There has been much discussion on the April 7 Supreme Court’s 5:4 ruling on the deportation of alleged Venezuelan gang members. Most condemned the court for allowing the deportations to continue while the legality of this application of the Alien Enemies act is being debated in the courts.
Others pointed out that the most significant part of the
ruling, which was unanimous at 9:0, was the insistence that due process was required
before deportation which includes notice that they are subject to
deportation and a reasonable time to seek habeas
corpus (challenging their confinement in court).
In Justice Sonia Sotomayor’s dissent she stated that if you
[the Trump administration] deport a single individual without due process after
today, you are violating an order of the Supreme Court of the United States.
This decision upheld the ruling by the fourth Circuit of
Appeals which said in part:
“The
United States government has no legal authority to snatch a person who is
lawfully present in the United States off the street and remove him from the
country without due process. The government’s contention otherwise, and
its argument that the federal courts are powerless to intervene, are
unconscionable,”
Andrew Weissmann and Mary McCord discussed this in an
article for MSNBC called “Cruelty Matched
with Lawlessness”. Weissmann and Jen Rubin also talked about it for the Contrarian on April 9.
Weissmann quoted a Home Security spokesman who tried to
steer the conversation away from the illegalities to the end result – getting a
bad person off the streets to make America safer.
“Thanks
to President Trump, foreign terrorist organizations no longer have legal
protections in America. Mr. Garcia was a leader in MS-13, a brutal gang
that rapes, murders, and maims for sport. Credible evidence links him to
human trafficking. … And then, instead of acknowledging the hard work of
our law enforcement in making America safe again, the mainstream media is
trying to turn a violent gang member … into a … victim. This isn’t a
misunderstood soul. This is a ruthless criminal who terrorizes
communities. The truth is simple, he’s off our streets. That’s the
story. “
Weissmann comments:
The
idea that it’s like he’s off our street because he’s a bad person, is
irrelevant to the legal principle of due process. They didn’t present any proof
of the allegations. But it’s just so shocking to me that of all people,
you’d think somebody who had been a criminal defendant would understand
that. You don’t … say … Well, Donald Trump committed crimes in
four jurisdictions, so let’s just send him off to jail. This is like the
Queen in Alice in Wonderland, “Off with her head”, trial to follow.
Due process is especially critical when, as the government
is claiming, they have no jurisdiction to recall them once they are deported.
Even when they’re conceding that it was a mistake.
Mary McCord quoted from an amicus brief filed by Erwin
Chemerinsky, Larry Tribe and Martha Minow:
The
government’s argument is that “once the executive branch has removed an
individual from the United States and arranged for that individual to be held
in a foreign prison, an Article III court is constitutionally disempowered from
ordering that the individual be returned to the United States, regardless of
whether the executive branch’s removal of the individual lacked any statutory
basis and failed to afford the individual any due process, and flouted a court order
issued pursuant to a congressional statute barring removal.”
They
went on to say, “If the government’s argument were correct, the executive
branch would possess a shuddering degree “of power, power that the president
could wield in extreme and extraordinary ways, including against American
citizens that the president simply disfavors. … and that should frighten
everyone.”
Finally, Weissmann and McCord discussed the attorney who was
fired for being honest and doing his job. Erez Reuveni was “put on
administrative leave” by the DOJ after admitting that the Trump administration had
mistakenly deported a Maryland man, Kilmar Abrego Garcia, who had been
protected from removal since 2019.
Deputy
Attorney General Todd Blanche, backed by AG Pam Bondi, suspended Reuveni for
not “vigorously advocating” on behalf of Homeland Security.
Judge Thacker of the Fourth Circuit responded that “the duty of
zealous representation is tempered by the duty of candor to the court, among
other ethical obligations, and the duty to uphold the rule of law, particularly
on the part of a government attorney.”
McCord: I mean, retaliation against someone who is doing what they are obligated
as an attorney to do, which is tell the truth to the court, is just, you know,
we’re at a new level here, right? We’ve seen retaliation for lots of
things, but we’re at a new level here.
Yes we’re at a new level. And it’s likely to go even lower
before turning around.
Sources:
https://contrarian.substack.com/p/andrew-weissmann-and-jen-rubin-on-7a3
https://thehill.com/regulation/court-battles/5235778-doj-suspends-lawyer-deportation-case/
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