“At least when the Court went off base in the past, it left a record so posterity could see how it went wrong,” Jackson wrote with a pointed citation to the 1944 decision in Korematsu v. U.S. where the court upheld the internment of Japanese-Americans during World War II.
“Far from acting ‘fairly’ as to the controversy in District Court, the Government has largely ignored its obligations to the rule of law,” Sotomayor wrote.
The decision also provides the administration with a win, even as it rather clearly violated a lower court order when it rapidly removed detainees to El Salvador.
And the court’s intervention also leaves open the question of what happens to those sent off to the foreign gulag. Administration officials argue they do not have the power to bring anyone back from El Salvador, even if they admit, as they have done, that a detainee should not have been sent there.
If those already removed must file habeas petitions from the jurisdiction where they are held, those in an El Salvador prison may have little to no options to challenge their imprisonment. A future case may resolve this through court precedents related to War on Terror detentions at Guantanamo Bay that provide the ability of detainees to file habeas petitions in the D.C. Circuit courts.
In Boumediene v. Bush, the court ruled 5-4 that detainees held at Guantanamo had the right to habeas relief. However, this holding hinged on Guantanamo being a U.S. territory under the Insular Cases. El Salvador is not a U.S. territory. Furthermore, the Boumediene majority consisted of now-retired Justice Anthony Kennedy and four liberals. Roberts, Alito and Thomas were all in the minority opposed to the decision.
The court may have a bite at this apple soon, as they have taken up a petition from wrongly removed Salvadoran detainee Kilmar Abrego Garcia for review on the shadow docket.
But the decision to intervene here and with this result in the Alien Enemies Act case bodes ill for any hope that the court’s conservative supermajority sees Trump’s actions as “an extraordinary threat to the rule of law,” as Sotomayor wrote in her dissent. They seem ready and willing to create technicalities to allow Trump’s war on the Constitution to continue.
You must be logged in to post a comment.