Thoughts on today's atrocity from #SCOTUS in Thuraissigam. Never let folx tell you the 5 conservatives care most about precedent, originalism or law’s predictability. Today they cared only for the anti-immigrant result they desperately wanted. @LeahLitman @rgoodlaw @adambcox 1/
The main issue: does the Suspension Clause require judicial review in deportation cases, was decided by SCOTUS twice b4. In 2001 St Cyr said “Because of [the Suspension] Clause, some "judicial intervention in deportation cases" is unquestionably "required by the Constitution." 2/
And Heikkila v Barber, a 1953 case St Cyr relied upon, also said judicial review is “required by the Constitution” based on its reading of thirty years of caselaw under the 1917 Immigration Act. @TomJawetz @ReichlinMelnick 3/
The opinion spends 13 pages disputing St Cyr’s reading of the common law history and another 9 pages disputing Heikkila’s reading of 1917 Act history. But in 1953 Heikkila said “the decisions have continued to regard this point as settled.” Citing four more cases. 4/
Oh, did Alito fail to mention that line in Heikkila saying this issue was already “settled”? How odd… Maybe that's because doing so would make clear he was effectively overruling two cases without explaining how to square this w stare decisis. 5/
The tortured attempt to distinguish dozens of cases challenging restraints on liberty other than physical custody is equally implausible. E.g. p.20-21: people in extradition don’t just want release, they want to avoid extradition! Just substitute deportation - not a hard case. 6/
The result is like an earthquake in constitutional immigration law: habeas corpus in deportation cases appears to be dead – although there are caveats in the opinion that may leave openings I’ll mention below. 7/
And that’s only half the horror show. In _three pages_ at the end the opinion the Court says Petitioner has no due process rights w/r/t his asylum application because he was arrested only 25 yards inside the border. 8/
What case does the Court cite where it previously found no DP protxn for someone inside the border? NONE. Before this, everyone arrested inside the U.S. had DP rights w/r/t their deportation. A simple bright-line rule. No case had said otherwise. 9/
Sure, the line b/w people stopped at the border and those arrested just inside feels arbitrary, but it was our law for at least 70 years. And originalists should recognize DP rights in ALL "persons," which is what the DPC says, not just those w enough ties to the U.S. 10/
What about the conservative value of predictability? That too takes a massive hit. Now whether you have DP rights in your deportation case depends on whether you were detained “shortly after unlawful entry.” How shortly? YEARS of litigation will have to address that question. 11/
And coupled with the Trump admin’s expansion of expedited removal (which the DC Circuit just reinstated), it puts millions of people, including citizens, at risk of summary deportation without the right to judicial review. 12/
The Trump admin will take these as authorizing a show-me-your papers regime for anyone some ICE or CBP officer thinks isn't a citizen. _You_ have to prove otherwise, maybe w/o judicial review. Definitely scary. 13/
I mentioned caveats. Bc the opinion is so disingenuous it is forced to leave some open doors. These are bases for distinguishing its holding that we will now have to litigate in lower courts - for those lucky enough to find lawyers.... 13.5/
1. Why bother to decide the DP qustn at all if there’s no jdxn? (True answer: bc it allows them to reject the DPC claim). The legal reason? The Court describes the DPC as an independent font of jdxn, which they do at n.21 and p.34. That is an opening to limit the damage. 14/
2. What about mandatory relief under the Refugee and Torture Conventions? Dsn't that give rise to protectable liberty interests? Even though it’s clearly pled in the petition, the Court “reads” those claims out bc they undermine the DP holding. n.5. This too leaves an opening.15/
Two last things. 1. What about the Breyer/Ginsburg concurrence? That would have said the particular claims here don’t count as q’s of law traditionally within the scope of habeas. I think it’s wrong, but no earthquake. 16/
I also wonder whether they were trying to get Roberts to join that, given some cites to his dissenting and concurring opinions in theirs. 17/
2. There is a human in this case. A Tamil fleeing Sri Lanka. Once given a proper translator and lawyer with time to hear him out, his account describes classic anti-Tamil political violence. Such violence has been endemic there for >60 years, including during a massive war. 18/
SCOTUS appears to recognize this, and actually suggests the govt might reconsider summarily deporting him. fn. 28. I guess even they barely have the stomach for this awful result. Of course thousands of other people fleeing persecution will never get even that paltry fn. /end
