HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

[ARCHIVE CLIP, Supreme Court: We'll hear argument next in case 19-161, the Department of Homeland Security v. Thuraissigiam.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, the hosts are talking about Department of Homeland Security v. Thuraissigiam, a 2020 case about what happens when the government decides you don't deserve meaningful due process. The case centers on an asylum seeker who fled violent persecution in Sri Lanka and tried to challenge his fast-tracked deportation through habeas corpus. The Supreme Court said that habeas doesn't really apply here, effectively blessing a system where immigration officers have the power to make life-or-death decisions with almost no judicial oversight. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have exposed our nation like Jeffrey Epstein's emails have exposed Donald Trump.

Rhiannon Hamam: Ooh!

Peter: I'm Peter, and I'm here with Rhiannon.

Rhiannon: Hello.

Peter: Our duly-elected president, he's just gotten himself in a little bit of hot water.

Rhiannon: Reams of emails.

Peter: Some new emails implicating him, and also a hilarious array, frankly, of pseudo-celebrities and elites. Larry Summers, Deepak Chopra, all just emailing Jeffrey Epstein after everyone knew he was a pedophile.

Rhiannon: Right. Talking about their girlfriends, talking about what parties Donald Trump was at, sharing photos. It's just disgusting.

Peter: The Larry Summers one is the funniest to me, because at one point he says, like, "Hey, you know, you can't even hit on women anymore without getting into trouble." And it's like, that's like a very standard sort of reactionary thing. "I can't even talk to women anymore."

Rhiannon: Yeah.

Peter: But to say that to a pedophile.

Rhiannon: Well, and in the same breath, isn't he saying—I don't know, I skimmed these fucking emails. Isn't he saying, like, "And women's IQ, it's just so low."

Peter: He also made, like, a joke in the email about women being stupid.

Rhiannon: These are the guys. These are the guys protecting each other right now. These are the guys doing all the bad stuff in private, in public.

Peter: I think it's bad. I think it's bad that the President's a pedophile. Yeah, I'll just say that. I'm brave enough to say it. Michael out this week with some kind of flu or something.

Rhiannon: Yeah.

Peter: He's been socializing a lot for a couple of weeks, but unfortunately he's very old and he got sick and now ...

Rhiannon: He's frail, and God had to remind him, "Sit down."

Peter: He's just out of commission. Although I'm not a hundred percent sure I believe him, because earlier he sent a picture of himself in the urgent care waiting room to us, which I thought was him trying to prove that he's sick. And it's like, well, I thought you were until you sent this, you know? And now it's like ...

Rhiannon: [laughs] Now it looks suspicious. Yeah.

Peter: What's going on?

Rhiannon: Now this is, you know, two guys emailing each other about what parties they weren't at, you know?

Peter: Right. It's exactly like that.

Rhiannon: [laughs]

Peter: This week's case, DHS v. Thuraissigiam. This is a case about immigration law, and specifically about your ability to use habeas corpus to challenge your removal. Vijayakumar Thuraissigiam was a Tamil man seeking asylum in the United States, because he feared persecution in his home country. An immigration officer found that he was not in danger of persecution and ordered that he be deported. So Thuraissigiam filed a writ of habeas corpus challenging his deportation. But the Supreme Court in the year 2020, in a seven-to-two decision, said habeas corpus doesn't really apply here.

Rhiannon: Yeah.

Peter: This is another in our ongoing series of pre-Trump 2.0 cases that laid the groundwork for Trump 2.0, right? This one by making it much harder to challenge expedited removals.

Rhiannon: Yeah. And it's just—you know, it's on point. The last few episodes, the last several episodes, what, like, half of the episodes of 2025 have been somehow about immigration. Because this is such a massive—it's such a huge way that the Trump administration is, like, enacting its agenda, enacting the repression, doing authoritarianism is, like, through this body of law, through this arm of enforcement, which is immigration.

Peter: Yeah.

Rhiannon: In the last episode, like, listeners heard about how, like, Leqaa Kordia, currently ICE detention. Like, where are her lawyers fighting? They're fighting in federal habeas, right? Like, these—all of the building blocks to get us to where we are today. So let's talk about Vijayakumar Thuraissigiam and his case. He was apprehended less than 50 yards from the southern US border after entering without documentation or legal permission. And so DHS put him in what are called expedited removal proceedings, basically like this legal process for immigrants entering the United States to be—just like it says, to be on a fast track to removal, to deportation. This is a regime, a statutory scheme that was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That's the law that's sort of governing these proceedings here, and lays out what the process should be for—again, in the interest of the government—quickly removing immigrants from the United States.

Rhiannon: And so in expedited removal proceedings, Thuraissigiam makes an asylum claim. He says that he is in danger of persecution on the basis of his ethnicity. There are other protected grounds as well, but he says he's in danger of persecution on the basis of his ethnicity as a Tamil man if he is sent back to Sri Lanka. That's the first step. The first step is to go through what's called a "credible fear interview," in which you have to assert that you're in danger of this kind of persecution, right? Under the Immigration Reform Act of 1996, the immigration officer determines if that credible fear is legitimate, determines if what the immigrant is saying about their risk of persecution, should they be deported, if that's really true. And note how, like, discretionary this is. And note how, like, it's one fucking officer who's, like, making this initial decision, basically thumbs up or thumbs down, are you telling me the truth about whether you're gonna be persecuted?

Peter: Right.

Rhiannon: Do I feel like believing you that you will be persecuted?

Peter: We'll talk about this a little bit later, but that's what expedited removal is. You're not even in, like, immigration court.

Rhiannon: Right. Exactly. They just put you in front of an asylum officer. Like, this isn't an independent inquiry, an independent judge. An asylum officer is employed by DHS.

Peter: Yeah.

Rhiannon: The Department of Homeland Security. This is not somebody who, like, has a graduate degree, wrote their thesis in refugee studies and migration, right?

Peter: Yeah.

Rhiannon: This is an employee of the machine. And it's that officer making the decision.

Peter: I mean, think about that for a second.

Rhiannon: Yeah. And under this 1996 statute, what happens if you disagree with that immigration officer's decision is that the immigration officer's own supervisor reviews it. So in this case, the immigration officer reviewing Thuraissigiam ...

Peter: Appealing to a higher immigration—like a higher border patrol agent?

Rhiannon: Right. It'd be like going to Trump.

Peter: That's the appeals process, right?

Rhiannon: It'd be like going to Stephen Miller. Like, yeah, exactly. This is the appellate process. So the immigration officer denies Thuraissigiam's credible fear assertion, his claim. It goes to that immigration officer's supervisor. The supervisor agrees with the denial. And then under the Immigration Reform Act of 1996, the next step, if you want to appeal the decision from there, is you can appeal it to an immigration judge. We've talked about this, y'all. On the past few episodes it's been mentioned. Immigration judge. That is not—right? That is not like a real court system, that is separate from federal district courts and what we think about as judges. These are administrative judges. They are appointed by the president. This is within basically the ICE system.

Rhiannon: So he appeals to an immigration judge. That immigration judge, of course, affirms those immigration officers' findings. No actual credible fear that Thuraissigiam is asserting here. And so under the Immigration Reform Act of 1996, that would be, like, the end of the story. But Thuraissigiam says, "Hold up. My due process rights guarantee me, and other constitutional rights guarantee me that I deserve review, essentially, like, by a real judge, by a real court." Essentially like, "I deserve review about whether or not the process that I was just given was actually lawful, like, actually insured my constitutional rights." Right? And as we've talked about in the past few episodes, this—how do you make this kind of claim? How do you bring this kind of case into federal district court? You file a petition for writ of habeas corpus.

Rhiannon: So this is how we get to the Supreme Court. Thuraissigiam is filing a writ of habeas corpus. And the question is, can immigrants in Thuraissigiam's position, who are in expedited removal proceedings, who have been ordered removed in expedited removal proceedings, can they challenge that finding? Can they challenge the process that they were given in immigration court and in these administrative hearings, can they even challenge that in federal district court through habeas?

Peter: So Thuraissigiam is trying to file this habeas corpus claim—we've covered this many times, but habeas corpus is a right to challenge your detention if you think it's unlawful, right? Essentially, you are demanding that the government justify whatever it is doing to you or else let you go. But there's this 1996 law, right? The Illegal Immigration Reform and Immigrant Responsibility Act. And that law says you can't use habeas in situations where someone arrives in the US seeking asylum and is denied, except for, like, these very narrow purposes. But Thuraissigiam says, "Hold on, there's a part of the Constitution that says habeas corpus rights can only be suspended basically in times of war." That's the suspension clause of the Constitution. So can't just pass a law saying it doesn't apply to some deportations. It's protected in the Constitution.

Rhiannon: Yeah. And, like, very few times that the right of habeas has been suspended, right? Like the Civil War.

Peter: Right.

Rhiannon: Abraham Lincoln suspends habeas. Very few times that this has happened, officially.

Peter: So Sam Alito writes the majority. And he does some originalism here, right? He basically concludes that if you look at the history, there's no reason to think that habeas would apply in this circumstance. The problem with this type of analysis here is that as Alito admits, there was no immigration law at the time of the founding.

Rhiannon: Yeah.

Peter: So there were no, like, regular deportation proceedings at all. So how can you do, like, an originalist analysis, right? You're already, like, on very odd, shaky ground. Alito says, "Respondent's use of the writ would have been unrecognizable at that time. Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country."

Rhiannon: Mmm, it's not.

Peter: I mean, yeah, that's odd and wrong for a few reasons. So basically, he's saying habeas is historically about being released from unlawful detention, and this is about avoiding deportation. Those are totally different, right? But first of all, are they? This dude was detained, held by the government. The government's trying to deport him to a place that he considers dangerous. He's asking for the government to either adequately justify this process, or else release him into the United States. It's not like a one-to-one comparison to a standard unlawful detention, but the similarities are pretty material. And I also think it's pretty fucking dumb to be like, "Well, this isn't what habeas was for at the time of the founding." Because yeah, immigration proceedings like this didn't exist at all at the time of the founding, right? If you're going by what was happening at the time of the founding, anyone could just fucking pop over on a ship.

Rhiannon: Right.

Peter: And walk into the United States.

Rhiannon: And then when they were found, they could just be, like, shot or whatever. Like, there is no law, there's no process. [laughs]

Peter: You just, like, walk into the fucking woods and build a house.

Rhiannon: [laughs]

Peter: Like, I don't understand how we're getting this analogy, right?

Rhiannon: Yeah. Yeah, it seems weird that you could create, like, a new type of proceeding, these, like, immigration deportation proceedings, and then the Constitution doesn't really apply to them just because they didn't exist at the time of the founding, right?

Rhiannon: Mm-hmm. Yeah.

Peter: No one actually thinks that, but that's sort of the implication from Alito's reasoning here.

Rhiannon: There's a lot of the framing in the majority opinion that's so off. And I think Sotomayor, when we get to the dissent, like, she points out a lot of this. But just to go back, like, he says—this is really important in the majority. He says Thuraissigiam isn't trying to secure release, he's just trying to obtain additional administrative review. Administrative review means something specific in the law, which is that it's not like typical court legal review. It's review in an administrative proceeding.

Rhiannon: So Thuraissigiam is literally not seeking additional administrative review. He's not seeking review in the immigration administrative system. He's seeking federal district court review in habeas.

Peter: Right.

Rhiannon: It's just framing his whole claim as, like, kind of fake, as, like, superfluous, as just trying to get a second bite at the apple, essentially, at his immigration claims and get, like, permission to stay in the country, right?

Peter: Yeah.

Rhiannon: Another part of this opinion—you know, there's kind of these two parts. Like, can Thuraissigiam bring this claim in habeas? Can a federal district court review the process that he was given over in immigration land? And Thuraissigiam also makes a sort of separate but related constitutional argument that he has not been afforded due process. And the holding here, and what Alito talks about, is that due process essentially does not extend to non-citizens like Thuraissigiam who are in expedited removal proceedings like this. Alito goes through this, like, silly argument about whether or not, like, Thuraissigiam really entered the country by saying, like, "Well, other immigrants who would be afforded due process, well, they've entered the country in different ways." And Alito saying, "Well, Thuraissigiam, it's unlawful entry, and he was only a few yards from the border, so that's really not entry that gives you due process rights." So this is obviously arbitrary and absurd.

Peter: One of the concurrences, the Breyer concurrence, which we'll talk about in a bit, also latches on to this. The idea that, like, he's only a little bit into the country.

Rhiannon: Yeah.

Peter: [laughs] So, like, as if, like, your constitutional rights sort of like sink in over time.

Rhiannon: Oh yeah, only attach based on a sort of geographic standard. Like, this is very strange. Yeah.

Peter: And time, right? And—because they talk about the amount of time that they've spent there, too. Yeah, so, like, the idea that, like, the Constitution slowly seeps into you as you are hanging out in the country, and it takes—it takes a bit. And the deeper you are in the country, the better, I guess. That's the implication.

Rhiannon: Yeah. The closer you are to the heartland of America.

Peter: Yeah. The closer you get to Missouri, the more constitutionally protected you are.

Rhiannon: St. Louis is the promised land of the Constitution. Yeah. It's really bizarre, and it's obviously sort of on its face quite absurd. And, like, you don't even need to say if no due process, if you don't even have a due process right here, there's no judicial oversight whatsoever over this statutory scheme, over the expedited removal proceedings. If you don't even have, at minimum, due process, which is to say a court, please review, review the process that I was given to make sure that that was lawful, then there's no judicial oversight whatsoever. Alito and the majority—again, seven-two—completely fine with that.

Peter: Yeah. And just to hammer it home, this is such a good example of how fucking stupid originalism is, because here we have this guy being deported in a process that was created in 1996, and he's like, "Hey, this seems like it violates my habeas corpus rights." And Alito's like, "Well, you know, I don't think the founders would recognize your situation as one where habeas would apply." And it's like, well, yeah, that's because you made the situation up. Like, the situation's new. The situation wouldn't have existed at the time of the founding.

Rhiannon: Right. Not legally, like you said.

Peter: The situation wouldn't have existed a hundred years after the founding. The situation started existing in 1996.

Rhiannon: Right. With this law.

Peter: Two hundred years after the founding. So, like, what does originalism have to say about this? It just feels so fucking stupid. You're trying to do this thing where you're like, well, the Constitution doesn't apply quite as much to immigration law. And the only comparison you have is the founding, when there literally was no immigration law. Surely that would mean that immigrants have more of a right to enter, right? Am I ...

Rhiannon: It's even more ridiculous, though, Peter, because habeas—Sotomayor gets into it in the dissent. Like, habeas jurisdiction has been recognized in immigration law all over the place, right? Over, like, the past century in many, many cases. So maybe it wasn't exactly Thuraissigiam's position in expedited removal proceedings, but in many other areas of immigration law, immigrants have challenged their detention or challenged the process that they were given in federal habeas by using a writ of habeas corpus. Thomas has a concurrence here, which really gets kooky crazy with the originalism.

Peter: I stopped reading when he mentioned the Magna Carta. I was like, "I'm gonna leave this to Rhi."

Rhiannon: The Magna Carta's in there, the 13 colonies. It is wild, where the 1600s, the 1700s, the 18—it's so much. It's puro Thomas. And he obviously completely agrees with the majority. He's writing separately to say that he thinks actually the writ of habeas corpus is even more narrow, actually, and that the suspension clause, this idea that Congress can pass a law to suspend the writ of habeas corpus, that that's really narrow as well.

Rhiannon: So he says, first of all, okay, habeas corpus, that's a tool. It guarantees your freedom from discretionary detention without bail or trial. If law enforcement, if the executive is trying to put you in jail, literally without bail or trial, Thomas says that's what habeas is for. And the only time your ability to make that claim to protect yourself from that kind of discretionary detention, the only time that ability is paused or suspended is when Congress passes a law granting the executive branch literally the power to detain people without bail or trial.

Rhiannon: So Thomas says it's only this narrow situation. He's saying Thuraissigiam's argument that hey, this is a violation of the suspension clause because Congress did not allow the executive to suspend the right of habeas corpus. I should be able to file this. Well, Thomas says, no, this is the Immigration Reform Act of 1996. This isn't suspending anything about bail, trial.

Peter: Right.

Rhiannon: And so Thomas gives this long, long history lesson, which ...

Peter: It's very weird. It seems like what he's arguing is like, the only thing that the suspension clause protects against is, like, a law that says habeas corpus is suspended. Like, that's—like, that's it. I don't quite understand it. He's like, "As long as you don't mention it and you just use a series of loopholes, you're good."

Rhiannon: And also, as long as you're not being detained without bail or trial. Like, he's thinking about, like, criminal cases, right? Like, you are thrown in jail, maybe accused of being a criminal without process at all, you don't have the opportunity to, you know, quote-unquote, "defend yourself against those allegations." That's what habeas is for, nothing else. Meanwhile, it's such a selective history lesson, of course. He's choosing, like, a judge's speech at a state convention in 17-whatever the fuck, to cite to.

Peter: It's, like, not even worth arguing with his history because it's just like, what the fuck does he know?

Rhiannon: There's a whole amount of history. There's a whole other historical story where habeas is used in areas other than discretionary detention without bail or trial. Like, it's just ridiculous. It's just ...

Peter: It's classic Thomas.

Rhiannon: Dumb.

Peter: Breyer also files a concurrence, joined by Ginsburg. So they're agreeing with the majority here.

Rhiannon: Yep. Makes it seven-two.

Peter: He tries to hedge it a little bit. He says, "The suspension clause hasn't been violated in this particular case, but we shouldn't rule out the possibility that it might be violated in, like, different types of expedited removal cases." Right? So maybe if someone was held for longer, then maybe they could use habeas. So he's saying we shouldn't say that habeas doesn't apply here to, like, expedited removal generally, but it doesn't apply to this dude right now.

Rhiannon: To this guy.

Peter: And he sort of mirrors Alito's reasoning at times. He says this guy basically arrived in the country, didn't make it that far in, and was apprehended immediately, right? That's different from someone who has lived here for years. Which is true in the general sense. It's different, but I don't see why it would be relevant at this stage, right?

Rhiannon: Why relevant to, like, when your rights attach, then?

Peter: Right. Like, remember what Thuraissigiam is asking for here is that his detention and removal be reviewed.

Rhiannon: Yeah.

Peter: That's what he's asking for. For federal courts to review his situation. To say that they can't even be reviewed because he hasn't been here long and didn't make it that far into the country? I don't get it. Again, it just doesn't make sense to me to think that, like, your rights sort of sink in the deeper into the country you go. It just—what the fuck are you talking about?

Rhiannon: And back to the statute, this Immigration Reform Act. They're all over the statute and what the statute says the process is, and they're like, "Our court's hands are tied. Like, we can't do anything." Well, nowhere in the statute does it say, "Well, if you're 50 yards into the country, then the procedure's different," right? It's ridiculous. They're making up this part. They're making up this part to justify it.

Peter: There are some other arguments in this concurrence. They mostly center around the idea that this guy wasn't denied process, he just argues that the process was not adequate. In my mind, this is like lawyer brain shit. I'm not sure what the material difference is between being denied process altogether and being given inadequate process. Those are materially the same thing, right? The argument is that, like, there's a threshold of process—that's due process. If you don't reach it, you didn't get due process.

Rhiannon: Whether it was no process at all or inadequate process. Did you get the process that was due to you?

Peter: Right. If the amount of process is ten, that's the constitutional minimum. Whether you get five or one, it's still unconstitutional. So I don't really—I don't really get that argument either.

Rhiannon: Yeah. No, no, no, no, completely arbitrary. They're really making stuff up here. So Sotomayor has a really long dissent that's just as long as the majority. I think she gets at a lot of these things pretty effectively—stuff that we've already been bringing up. She says, for example, that the majority really gets the habeas precedent wrong. "Federal courts," she says, "have heard claims across a variety of situations, including immigration and immigration detention claims that still were found squarely within habeas jurisdiction. A federal district court reviewed it in habeas, and decided and constructed what the relief in habeas would be."

Rhiannon: And she calls out the way that the majority and the concurrences are framing what it is that Thuraissigiam is asking for, what his claims are and what his arguments are. You know, she says the majority says that the relief that Thuraissigiam is seeking is quote, "Gaining a right to remain in this country," and quote, "authorization to remain in a country other than his own." But Sotomayor is like, that's not what he's asking. Nowhere does he ask, "I want to be allowed to stay in the United States." He's making claims of legal error.

Rhiannon: So back to this statute, the Immigration Reform Act. The standard set by that law for establishing whether somebody has a credible fear, you know, upon deportation, is whether there is a significant possibility, that he has established, that he has shown a well-founded fear. That's the legal standard that's in the statute. It's not that the executive shouldn't have discretion. That's not what he's arguing. It's that that discretion was exercised unlawfully. He didn't have the process; there was legal errors. This legal standard that is set out in the law was not met.

Rhiannon: And so the question is whether the facts that he presented in his credible fear interview satisfy that statutory standard. And the right way to make that claim is in habeas. The right way to get a judge to review whether they did that lawfully according to what the law says is to make that claim in habeas, right?

Peter: And also it's worth noting, like, Thuraissigiam's argument that he was in danger back in Sri Lanka was like, he was, like, kidnapped by armed men.

Rhiannon: He was beaten. Yeah.

Peter: And the reason that he was denied asylum is because the officer was like, "Well, how do you know who those guys were?" [laughs] Like, that—and he was like, "Well, obviously I don't, like really. You know, they didn't say, 'Here's our political affiliation, here's why you're being targeted for persecution.'" And so the officer was like, "Well, it's a gray area." It's just like, are you fucking kidding me?

Rhiannon: Right. Ridiculous.

Peter: So fucking—and that's—I feel like fundamentally Thuraissigiam is like, "Hey, could someone besides this fucking hick take a look at my claim?"

Rhiannon: Right. Right.

Peter: "You know? Wouldn't that be cool?"

Rhiannon: Could this person point to Sri Lanka on a map? I just—right? Like ...

Peter: Yeah. Can I get someone with an eighth grade education up in here to just take a glance at my claim?

Rhiannon: I'm begging. Yeah, and so this goes to the due process argument, right? Thuraissigiam is saying he didn't get due process in these removal proceedings. Yes, they're removal proceedings, they're expedited removal proceedings, but they are governed by law, and I am due a certain process which I was not given, right? He says he wasn't given meaningful opportunity to establish his claims. Who knows how long this conversation was, his quote-unquote "credible fear" interview. He says he wasn't given meaningful opportunity to really establish those arguments or give information about his credible fear. The translator and the asylum officer in his credible fear interview, Thuraissigiam said, didn't understand him. They didn't understand and properly translate what he was saying. He was not given an explanation for the decision, right? Like no—just like, no, sort of—again, legally. Right? Like, what did we decide? And explain it to me.

Rhiannon: So in short, that process that he's legally owed was not adequate. But again, Sotomayor is saying, like, the majority frames this like by making this claim, Thuraissigiam is asking for, like, multiple cracks at getting his asylum decision reviewed. But it's just not what he's asking for. He's asking that the process that he was given be constitutional. Just give me the process that I'm due. That's all. The decision at the end just needs to be after adequate process.

Peter: It's probably worth talking for a second about expedited removal, which is, I think, something that most listeners have probably heard.

Rhiannon: Yeah.

Peter: Even if they don't really know exactly what it is. And maybe it's somewhat self explanatory, right? But expedited removal is created with this law in 1996, the immigration reform law. And the basic idea is that for certain non-citizens, namely those who are undocumented or who ostensibly make a misrepresentation during the immigration process, they would expedite removal. And what that means in practice is no hearing before an immigration judge.

Rhiannon: Right.

Peter: Already very questionable stuff in terms of due process, right? You're just—just some fucking hick is like—it's like, "I don't—I don't know." You don't know—like, you ...

Rhiannon: Completely discretionary.

Peter: Right. No real right to appeal, right? Which makes it more important that there be a habeas backstop there. And yeah, so some guy is just like, "Eh, yeah, you were kidnapped, but you don't really know who the kidnappers were, so no credible fear of persecution. You have to go back." The reason this has been in the news lately is because Trump has tried to make this even worse than it already is. Previously, it applied to people who were apprehended within 14 days of their arrival and within 100 miles of a border. So if they apprehended you three weeks after your arrival, even if you were undocumented, they'd have to go through the immigration judge, right? They couldn't just send you through expedited removal.

Peter: Trump issued an executive order erasing the distance requirement entirely, and changing the timeline requirement to within two years of arrival. And not just arrival but, like, residency, like you had to establish residency. This was challenged by the ACLU. I believe it's currently blocked. But that's what's happening now is that the Trump administration has sort of latched on to this expedited removal process, and they want to put as many people through it as they possibly can. So someone who has been living in this country for a year and a half, otherwise a model citizen or whatever—a model non-citizen, shall we say—doesn't matter. You can get snatched up. No immigration hearing, no hearing.

Rhiannon: And obviously this is what we're seeing, right? Like, some stats that the Trump administration themselves are putting out, like, gloating about, you know? CNN reported at the end of August of this year that ICE alone had deported nearly 200,000 people in the first seven months of 2025. In September of this year, the Trump administration's DHS put out a statement that in expedited removal proceedings, the Trump administration had deported 400,000 people. So you can see how, like, the legal infrastructure of expedited removal, like the ability of the government to do this so quickly and without those procedural backstops allows this machine to just, like, expand exponentially quickly.

Peter: Right.

Rhiannon: You know, and back on the court's kind of abdication of its duty, abdication of its review powers, really in habeas, Sotomayor touches on this a little bit in the dissent. She says the court is abdicating its constitutional duty. Remember we said habeas is in the Constitution, right? And, you know, I think what conservatives certainly, and the Supreme Court over time and now gets so wrong about federal habeas is, like, treating it like just another sort of procedure that may or may not apply. And in deciding if it applies, you know, you're weighing all these like, efficiency concerns, right? But we have to take a step back and think about, like, okay, why would habeas be in the Constitution? Like, what is this—what does habeas actually mean, right?

Peter: And the context in which it's in the Constitution is sort of interesting, because the only reference to it is the suspension clause. The suspension clause doesn't say you have a right to habeas corpus. The suspension clause says, "Here are the situations where the President can suspend habeas corpus." And it's only invasion or rebellion, war. So the Constitution treats habeas corpus as this pre-existing thing that we should all know about and respect.

Rhiannon: As an assumption. It's applying all the time. Right? Like, without even really, like, saying it, it's there. And then, like, what does it actually mean, substantively, right? What habeas does is gives a person a last resort—a last resort to grant a federal court the ability to review what the government is doing to that person. You have no other claims left, you've gone through the legal process, be that administrative or otherwise. You've done all the appeals that might or might not be available to you. It is the last resort to say what the government is doing to me is illegal. It violates my constitutional rights, right? That's what federal habeas is. And conservatives, you see it here, you see it all over the board, Thomas does this on habeas in death penalty cases all the time, conservatives treat it as procedural and not the substantive thing that it actually is. For Thuraissigiam, for so many other people, for hundreds of thousands literally just this year in expedited removal proceedings, there is no mechanism by which you can get a federal court to review what the government is doing to you. That's what this case holds even though habeas is literally assumed to exist in the Constitution.

Peter: Right. And, you know, we've been covering these cases that are a little bit older, that predate the second Trump administration, and have effectively greased the wheels for Trump.

Rhiannon: Mm-hmm.

Peter: And the consistent theme is that it's so important to be thinking about what a bad faith political actor could do with this power if you give it to them. The court so consistently imagines a good faith political actor—and I'm especially talking about, like, Breyer and Ginsburg here, who join the majority's conclusion that Thuraissigiam does not get habeas here. They're sort of like, "Well, you know, he only made it in the country a little bit." Blah, blah, blah. All these stupid fucking reasons. They don't understand the stakes, right? They don't seem to understand what is at stake. It's not just this one guy, it's not just this one situation, it is a framework where the government can deport people without meaningful process en masse, right? And yeah, I just think that's what's missing from a lot of the analysis in these cases is like—not that Alito cares, for example but, like, what would a bad faith authoritarian government do with this power if you gave it to them? You can't just assume that whoever takes power won't want to abuse it.

Rhiannon: Yeah. Yeah. It's like, it's so unfortunate that you can see, you can easily explain this sort of assumption that it's all being done in good faith by liberals, like maybe Breyer and Ginsburg, because, you know, before Trump 2.0, this expedited removal stuff was slowly, slowly, you know, being accelerated, expanding. Under who? Presidents that those guys liked—Obama, Biden, whatever, you know? Like—and so it's like, well, you know, if that's my guy doing it, you know, I'm assuming it's all being done in good faith. And, you know, it goes to something you've said before, Peter, which is like a sort of broader illegitimacy of the argument against what Trump is doing by Democrats, because you've never stood up against it before.

Peter: Yeah.

Rhiannon: Right? Here you have liberals joining a majority opinion that, like, allows for this to happen.

Peter: I also think there's something almost broader going on here where the Constitution guarantees people all of these rights, but in practice it's actually really hard to guarantee people's rights. You need to afford everyone due process. Who does it? Who are the judges, who are the juries? All this stuff takes resources. And I'm not sure that our courts have ever reckoned with the basic fact, I think, that affording due process is extremely resource intensive. Instead, they've decided to solve that problem by not affording it, by saying, "Well, we can't do this, right? We can't give everyone who asks for it habeas proceedings, right?"

Rhiannon: Right.

Peter: You're gonna need judges. You know, it's the same thing with, like, civil litigation, for example, you know, just trying to toss as many cases out of court as possible and making it harder and harder to file a complaint for plaintiffs. The system can't really sustain the requirements of justice, and so courts have said, "Well, what if we just don't really provide justice? What if we put in a bunch of arbitrary thresholds that make it much harder to reach?"

Rhiannon: Where you see this so acutely in immigration and in mass incarceration in the criminal system as well, where instead of courts or anybody in government saying stop, the machine is actually too big, the machine is out of control. And evidence for the machine being out of control is that people aren't being afforded due process, people's constitutional rights aren't being protected. Instead of doing that, courts have, over the course of decades—and you see this just so accelerated and so, like, horrific in the immigration context right now, is courts have been like—instead of doing that, courts coming up with legal justification for why due process isn't due, for why you don't have to protect constitutional rights, you know?

Peter: Right. You see it in every context, right? I mentioned the civil context. There's also—there's also just the criminal context with the way that criminal proceedings work is effectively that almost everyone gets overcharged and has to plead out, right? And that is a direct function of the fact that the system cannot sustain everyone receiving a fair trial. It just can't. I don't think that that's an easy problem to solve, but I also don't think that the federal courts and the Supreme Court have shown a real interest in solving it, or even identifying it as a problem.

Rhiannon: Yeah. You know, to her credit, in dissent, Sotomayor acknowledges at least this part about the good faith or bad faith actors, right? She says, "The court in this case appears to justify its decision by adverting to the burdens of affording robust judicial review of asylum decisions. But our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the judiciary." Right? She's saying there will be people in charge who use this to their advantage at the detriment, at the harm of other people, at least constitutionally, right? Legally. And so we're just—the majority is just giving a green light to that, you know?

Rhiannon: Another way that I've been thinking about—you know, we've been talking about the Supreme Court cases that have—you know, the brick-by-brick thing, like, allowed a Trump 2.0 to be acting as this regime is. Another thing I was thinking about while reading the majority here is how the sort of really horrific, disgusting, racist dialogue and discourse about immigration right now, there's not a lot of distance between Nick Fuentes saying things like, "You know, if we don't have borders, we don't have a country," or Alex Karp, the CEO or the founder of Palantir, saying, like, "I'm gonna vote for whoever is closing borders," and talking about, like, American cultural supremacy. Like, you know, this—like, kind of this America first bullshit. I don't see a lot of distance between that, which is disgusting, and with Alito in the majority saying that Thuraissigiam is seeking authorization to remain in a country other than his own. He's implying, like, in this tricky way, Thuraissigiam is seeking a right to remain in this country. You have this being talked about in 2020 in the pages of Supreme Court opinions. Conservatives are talking like this, and here's legal discourse on it.

Peter: Right. It's like, it's not your birthright. I mean, that is the sort of the rhetoric and logic, you know? And I think that's the difference between even more conservative liberals and, like, the real reactionaries is, I think, if you're not an idiot, you probably understand someone's citizenship as a complete accident of their birth, and any bearing that has on your rights and dignity is unfortunate, at least. And I think conservatives just don't quite see it like that. They're like, "No, God placed me here. Like, and God placed you there." And if you are someone who's in Sri Lanka, your right to be here is—should be mitigated. Not just because it's necessary, which I think is, like, what a lot of liberals believe. Like, this is sort of like this necessary evil that we have to limit immigration. Conservatives don't really believe that. They think it's not just that it's a necessary evil, it's a necessary good.

Rhiannon: Yeah. No, it's a necessary good.

Peter: That you're preserving something, right? That every guy like this we keep out, it preserves Buc-ee's or Applebee's or whatever.

Rhiannon: Yeah.

Peter: We're keeping them safe, keeping our beautiful Chili's franchises safe.

Peter: All right. Next week, premium episode, folks. We're gonna be talking about the Venezuelan boat strikes. Obviously, Donald Trump and his gang of psychopaths have been drone striking random boats off the coast of Venezuela, claiming that they're trafficking drugs.

Rhiannon: A little extrajudicial execution activity.

Peter: Even though it's probably fishermen. Jesus Christ! We'll talk about it next week. Follow us on social media @fivefourpod. Subscribe to our Patreon—Patreon.com/fivefourpod—all spelled out, for access to premium episodes, ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

Rhiannon: Bye y'all.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.