The TDA ruling by SCOTUS was a *total loss* for the admin—and not just on process. And it was a Marbury-esque move by the Chief Justice. 🧵
The whole purpose of invoking the Alien Enemies Act was to do expedited removals without having to go through the INA administrative hearings.
9 justices said the AEA still requires some process. 4 said it requires process under the APA. 5 said it requires process under habeas corpus.
But guess what? Habeas corpus means going into federal court for every individual and all the process due—which is a lot more than the administrative process under the INA.
So the Court just said: You’re welcome to try to use the AEA (which may or may not be lawful)…but we’ve taken away your reason for wanting to use it in the first place. Thanks for playing!
In the meantime, the admin gets to claim a victory and the Court escapes unscathed. A win for the institution and the aliens who were already being detained under the INA are in no worse shape than before.
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