Yesterday, the SCOTUS issued a strange and confusing order that removed the restraining order on Trump's deportations...but also sorta constrains them? The 5-4 decision (and 5-4 decisions are going to determine whether we have constitutional government three months or three years from now) says that there must be due process for those facing deportation. So, that's good. The problem is that those facing deportation now have to file for habeas petitions in the jurisdiction in which they are detained. This obviously creates another prime opportunity for jurisdiction shopping. The good news, I suppose, is that this will create a limit on overall extrajudicial deportations to places like Texas, Florida, Idaho and the like.
The bad news is that if you get arrested and face deportation, chances are you don't have a lawyer on retainer to file you habeas petition.
This was all done in the "shadow docket" rather than in a more measured opinion. This means that the ruling is pretty limited to these specific cases and the need for jurisdictional relevance.
What is leaves in place is the fact that the Administration is using the Alien Enemies Act to deport people. As Judge Jackson notes:
The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.
This is where things get dicey, and the presumption that Trump is a "normal" politician creates all sorts of peril. Trump bathes in lies; it is his only fluent language, and the media facilitates this. His trade war is still somehow not being taken at face value by markets, who largely stabilized yesterday, based at least on false rumors of a negotiated end to the insane tariffs. He sure seems serious! He also doesn't have to face voters again, so he seems bound and determined to pursue these trade policies, even as they crater the economy.
A normal politician would self-correct. A normal politician wouldn't abuse the Alien Enemies Act.
Trump is not a normal politician, and SCOTUS needs to accommodate that in their opinions.
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