HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Trump v. JGG. This very recent case is about President Trump's mass deportation efforts, which he has defended using an 18th-century law called the Alien Enemies Act. The Trump administration has flown hundreds of undocumented immigrants from Venezuela to El Salvador, where they are being held in a notoriously dangerous prison. Meanwhile, a group of Venezuelan men who are awaiting deportation filed a class action lawsuit claiming, among other things, that their right to due process is being violated. A federal judge temporarily halted all deportation flights to El Salvador while the lawsuit played out. But then the White House asked the Supreme Court to weigh in. In a 5 to 4 per curiam decision, the court sided with the Trump administration, saying that while the plaintiffs did have a right to argue their cases, they had made procedural errors in doing so.

[NEWS CLIP: Well, it's a win for the Trump administration as it looks to conduct mass deportations. The Supreme Court says the White House may temporarily use the Alien Enemies Act, but the court said people who are detained must have time for due process.]

Leon: 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 destabilized our civil rights like Trump destabilizing the economy. I'm Peter. I'm here with Rhiannon.

Rhiannon Hamam: Short and quick and just right into it. We don't need flourishes on this metaphor. He's just destabilizing. [laughs]

Peter: Easiest metaphor of the year. Year for me.

Rhiannon: [laughs] Yeah.

Michael Liroff: And it's great. You don't even need to put a qualifier on it. Just the economy. Because wherever you are in the world, Trump has destabilized your economy. It's fantastic.

Peter: That's right.

Michael: It's fantastic.

Peter: And Michael, also here.

Michael: Hi, everybody.

Peter: Look, I thought about doing an elaborate metaphor about being at the emergency vet until 6:00 am this weekend. Why bother? Why bother? Trump is handing me metaphors.

Michael: Yeah.

Peter: Now this week's case, Trump v. JGG. This is a case from just a few days ago at the time of recording, about some of Donald Trump's immigration shenanigans. Not to be confused with the several other cases pending about Donald Trump's immigration shenanigans. As you already know, at least if you read the papers or listen to us, a few weeks back, Donald Trump declared the Venezuelan gang Tren de Aragua an enemy nation under an over two-century-old law called the Alien Enemies Act. The administration then flew a planeload of alleged gang members to a brutal megaprison in El Salvador, even while a federal judge asked them to turn it around.

Peter: In light of all this, a group of Venezuelan men held pending deportation brought a class action lawsuit challenging various elements of what's going on. The Trump administration claimed that they had brought this the improper way. They had brought it under a series of federal laws, including the Administrative Procedure Act. And the Trump administration said that these could only be brought as habeas corpus claims. Now if you think this sounds like a bunch of dumb procedural bullshit that I don't understand, you're already ahead of us here, folks.

Rhiannon: Yes.

Michael: Yes, that's right.

Peter: So the Supreme Court, in a five to four decision, sided with Trump. So we're going to explain to you what they said and what this all means.

Rhiannon: Yeah, this case has been in the news in, like, various ways. If you have heard about Judge Boasberg in the District of Columbia ordering that the planes turn around, ordering that there be a 14-day pause on these particular deportations, like, this is that case. This is the case at the Supreme Court, at least at this stage. So let's talk about what Donald Trump did that triggered this chaotic horror show. So on March 14, Trump signed a proclamation invoking the Alien Enemies Act. We've talked about it before. This is the law that Peter just mentioned. It's from the 1790s, gives the president the power to detain and remove citizens of countries that the US is at war with or countries that are, you know, like, threatening invasion of the United States. So this law has only been invoked three times in the nation's history, and each of those three times it was like during a real war: the War of 1812, World War I, World War II. And in fact, it's generally looked back on, the invocation of this law when it has been invoked in the past, it's looked back on as, like, a bad time in US history where ...

Peter: Well, this will be, too.

Rhiannon: Right. Right. Where the United States was treating immigrants really bad.

Michael: Nobody's proud of the internment of Japanese during World War II.

Peter: Right. Well, it's one of those laws that you—like, you read about in the history books and your history teacher is like, "This is this thing that happened in the past and certainly would not happen in the modern day. We've all learned our lesson."

Rhiannon: Exactly. Except on March 14, Trump signs this proclamation, invokes this law on the basis that Tren, which is, you know, the short version of the gang Tren de Aragua, is currently staging an invasion of the United States. You know, never mind there's no war with Tren, and that Tren isn't a country. And for that matter, there's no war with Venezuela either. And also, you can't be a citizen of Tren, right? Like, whatever. The proclamation says that all Venezuelan citizens who are 14 years old or older and who are not naturalized citizens, not lawful permanent residents in the US, if they're members of Tren, they're liable to, quote, "Immediate apprehension, detention, and removal.

Rhiannon: Okay, so signing, invoking the Alien Enemies Act, at least this kind of signature, the proclamation, that happened March 14. But it is clear now that in the days leading up to the signing of the proclamation, DHS, the Department of Homeland Security, was already preparing to deport Venezuelan migrants without due process under this invocation. Like, as soon as the proclamation was signed. That is against the law because the Alien Enemies Act itself requires that the president make public that proclamation of his intent to invoke the act. And here DHS was already working to make removals happen under the act before the act was publicly invoked. But that's what DHS did anyways. And in the days leading up to March 14, DHS moved Venezuelan migrants who were already in immigration detention facilities all over the country, and DHS moved them to a single detention facility in South Texas.

Rhiannon: Now those transferred migrants were not given notice that they were being transferred to another facility. They were not given a reason. They got there, and on the evening of March 14, they were told they would be deported the next day to an unknown destination. We know now that the government intended that destination to be CECOT, the concentration camp in El Salvador. Lawyers for these detained Venezuelan nationals filed a class action lawsuit in Federal Court in DC. Again, this was the case that was in front of Judge Boasberg in which he ordered that those DHS planes transporting Venezuelan migrants to El Salvador turn around.

Rhiannon: Now just to get into it a little bit, When Judge Boasberg ordered these deportations to stop, he was ordering that they temporarily stop. Like, while the lawsuit plays out, while it gets decided, right? The class action lawsuit that was filed on behalf of these migrants, it argued a lot of things, but basically this was a challenge to that invocation of the Alien Enemies Act for these plaintiffs, right? They argued, among other things, that Tren was not committing an invasion, so these deportations are not proper under that law. And they also argued that it would violate the plaintiff's due process rights if they're not given a chance to challenge the government's allegation that they're actually gang members.

Peter: Hmm. A wild theory of due process.

Rhiannon: [laughs] Yeah. Yeah. You know, in short saying this isn't proper invocation or use of the Alien Enemies Act, because Alien Enemies Act doesn't apply here. There's no war. And also, if you're using that law to say these people are alien enemies because they're members of a gang, well, due process would require that the people accused of being members of the gang have been given a chance to challenge that designation, right?

Peter: Right. Shouldn't you have to show that they actually are in the gang?

Rhiannon: Yes. So on March 15, even though the government knew that a lawsuit had been filed arguing that, like, removing these plaintiffs from the country would be illegal, the government put dozens of detainees onto planes so that it could rush them out of the country before a court could decide any of these legal issues. We know that some planes took off. We know that the government deported people that day without due process. We know that some people are in El Salvador in a concentration camp. We know Judge Boasberg ordered those planes to come back, and they didn't.

Rhiannon: Now as to the named plaintiffs in this class action, they are still in the United States. One of them literally was on a plane and taken off the plane before it took off. And Judge Boasberg issued a TRO, a temporary restraining order, which is what is at issue here in this Supreme Court case, saying that these specific deportations, the ones done under invocation of the Alien Enemies Act for Venezuelan nationals, they need to stop for 14 days while the court, like, hears the lawsuit and the arguments and makes a decision about whether these deportations are being done properly under the law. So this case that gets to the Supreme Court is because the government basically appealed the TRO, appealed the order that they pause deportations for 14 days. And because they want that pause on deportations to be lifted, and for all the law we just talked about: the lawsuit saying the Alien Enemies Act was improperly invoked, and the arguments about whether the president can or can't do this under the Alien Enemies Act, and the law about what processes do to these plaintiffs, all of that stuff.

Rhiannon: What the government says when it appeals to the Supreme Court is that these plaintiffs are challenging their removal in the wrong way. It shouldn't be by a class action that's brought, you know, under the Administrative Procedure Act to challenge the federal government's, like, regulations and—under immigration law or the Alien Enemies Act, the government's arguing it should be actually that each person files a completely separate legal challenge called habeas corpus.

Peter: Right. So let's talk law a little bit here. Habeas corpus, we've discussed it before, but it is an age old right to challenge your confinement as illegal. The Latin term translates roughly to, like, "produce the body," meaning in this case the body of the defendant in court, right? As in, this person is being held illegally. Bring him to court and let's hash it out.

Michael: When we say age old rights, like it predates the American Constitution. It goes back to, like, the Magna Carta, right?

Rhiannon: Yeah.

Michael: Like, it is one of the core, core foundations of constitutional government.

Peter: Right. It's mentioned in the Constitution. It's not that there's a section saying that habeas corpus rights exist. There's an offhand reference to habeas corpus as if it's this sort of existing thing that everyone knows exists, right?

Rhiannon: It's, like, assumed that it exists. Yeah.

Michael: You can—only Congress can suspend it,and only in certain cases. Like, it's like everybody knows you have habeas corpus, so we're making sure that the government can't suspend it except in very rare circumstances. Yeah.

Peter: So you would bring a habeas claim if you were in prison and you felt that you were in prison illegally. So the dispute here in this specific case is a little bit technical. As it stands, this is not a habeas case. These men brought a class action alleging the violation of various statutes by the Trump administration, basically saying the Trump administration's exceeding their power, as well as due process violations. The Trump administration argued that they can't bring these claims, and instead they need to bring them as habeas claims. Now the court, in a five to four per curiam opinion, agrees. Now we've talked about per curiam opinions before—another Latin term. It just means, like, the opinion of the court, which basically just means in this case that we don't know who wrote the majority.

Michael: Another ridiculous choice.

Rhiannon: Yeah.

Peter: It should be illegal. It should be illegal to do per curiam when it's not a unanimous decision.

Michael: Yeah.

Peter: They should be in prison. They should be sent to El Salvador for doing it, I think.

Michael: [laughs]

Peter: The gist of the argument made by the Trump administration and accepted by the court here is that there are some cases where habeas corpus is the only way that you can get relief, and the court says this is one of those cases. They say that this is what is called in the law "core habeas," basically something that is so quintessentially a habeas corpus claim that it must be brought as one.

Rhiannon: Yeah.

Peter: Now a couple of things here. First, this whole core habeas concept, it's made up. There's nothing in the Constitution or any statute that would require these claims to be brought exclusively as habeas claims. Second, even putting that aside, the idea that these claims are core habeas, like, quintessentially habeas corpus claims, is ridiculous.

Michael: It's preposterous. It's preposterous!

Peter: Habeas, again, historically, a mechanism for challenging your unlawful detention.

Michael: Right.

Peter: Right? These guys aren't even doing that. They're challenging their removal. So how can this be quintessentially habeas corpus such that it has to be brought that way? It's just nonsense. You could go down, like, a rabbit hole of the history here. I honestly think it's not really worth it. We'll talk about some of the precedent in a second. But, like, again, historically, this is a thing you use to be like, "I'm in jail and I shouldn't be." Right? And these guys are saying, "Don't deport me." And the Supreme Court is saying that these are so similar ...

Michael: Right.

Peter: ... that you must bring this as a habeas claim.

Michael: Not even, "Don't deport me." It's just, "Don't deport me to this one place. To this one place."

Rhiannon: Well, it's "Don't deport me under this law."

Michael: Yeah.

Rhiannon: And I think this is important. I mentioned in the background, and Peter, you just said it, these men are not challenging their detention in immigration facilities at all. They're challenging their removal under this law. Like I said, they were previously already detained in immigration facilities. It was the invocation of this law as it applies to them—allegedly—that became the grounds for their removal. That's what they're challenging. You cannot remove me. You cannot deport me from this country under the Alien Enemies Act. It doesn't apply, and it exceeds the president's authority to invoke the law at this time. And so if they won on their claims, if they got the relief they were asking for, they would not get out of immigration detention.

Peter: Right.

Rhiannon: So it's not habeas.

Michael: And they could still be deported under the Immigration and Naturalization Act.

Rhiannon: Right. Under other immigration laws, yeah.

Michael: The government would just have to go through the procedures those require. That's it.

Rhiannon: Right. Right.

Michael: You can still deport them the normal way you deport people.

Rhiannon: Exactly. I also want to clarify a little bit, like, the difference between habeas and the difference between, you know, challenging your removal under certain laws and that kind of thing. In these cases, there are legal proceedings. In a lot of the immigration cases now under, like, the Trump administration, there are legal proceedings under immigration law and various statutes like the Alien Enemies Act, the Immigration and Naturalization Act, and possible separate habeas proceedings.

Rhiannon: This is true, for example, in the Mahmoud Khalil case. There's immigration proceedings ongoing on the grounds of his deportability as a green card holder. There are laws, there's certain due process that, like, require a certain process if he's gonna be deported as a green card holder. There's a separate habeas case alleging that the fact of his detention is illegal, it's unconstitutional because it violates, like, his free speech rights. It violates his due process rights constitutionally. Habeas is how you say, "My detention, the fact that I am detained, the fact that I am in prison or what have you, that is illegal. It is unconstitutional. It violates my constitutional rights." Separate and aside from any statutory or other legal proceedings that might be happening in your case in which you might be fighting on different grounds.

Peter: Yeah. There can be all sorts of laws saying, like, they can't put you in jail for this, they can't put you in prison for that, and you can bring cases under those laws to challenge your confinement. What habeas is is this separate thing saying even if there are no laws, even if there is nothing in the law that says that you can challenge your detention, you can still bring a habeas case. So they cite a bunch of cases to support this idea that these have to be habeas claims, but none of the cases that they cite really support that. Lee Kovarsky, a habeas expert at UT Law, said that the misuse of precedent here was so egregious that he felt that it had to be purposefully dishonest.

Rhiannon: Yeah.

Peter: To give some examples, most of the cases the majority cites have to do with state criminal cases. These are federal immigration cases. Non criminal, right? Not comparable situations. Brett Kavanaugh does a concurrence where he claims to be citing cases holding that habeas is the proper vessel for removal to another country, but the first case he cites literally says that removal cases don't have to go through habeas.

Rhiannon: Literally. Literally that's what the case says.

Peter: On top of that, there have been a couple of cases from the Roberts Court itself that directly contradict this case. In 2020, there was a case called DHS v. Thuraissigiam, where a Sri Lankan man was being deported and tried to bring a habeas claim to stay. Alito wrote the majority. He said in that case, quote, "Habeas has traditionally been a means to secure release from unlawful detention."

Rhiannon: Yes.

Peter: "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: Oh, really?

Michael: Hmm.

Rhiannon: [laughs]

Peter: So to frame this all up, five years ago, he was saying habeas is not the proper method for challenging your removal. Now here in 2025, he's saying it's the only method.

Rhiannon: Yeah.

Michael: A core part of habeas.

Peter: Just fucking shameless. Just shameless. Just fascist, wheel-greasing filth!

Rhiannon: Yep. Greasing the wheels of the train to the concentration camp. That's what the Supreme Court is doing.

Peter: Right. And I want to make one little, like, nerd point here. The court will say, like, "We're obviously right about this," and then cite like, five cases, right?

Rhiannon: Uh-huh. Yeah.

Peter: And it's, like, designed to make you think that those cases support the exact supposition that they're making, right?

Rhiannon: Yeah. That there's, like, authority for this, that there is precedent that's on point that supports what they're saying.

Peter: And if you're like a law student, or even just a lawyer who's not an expert and you read that, in your brain, you're like, "Well, they must be right. Right? Like, they wouldn't be completely misrepresenting these cases, right?" Now the thing about that is that, like, if you're a law student, you're never gonna read all five cases cited to make sure that everything's on the up and up, right?

Rhiannon: Yeah.

Peter: It's just something that's meant to, like, click into your brain, like this aura of authority, this aura that they are correct and that they have history on their side, but they fucking don't. They are absolutely bullshitting.

Rhiannon: Yes.

Michael: Yeah. I mean, the way they use it in this case, it's like, barely removed from just, like, making shit up. Just literally just being like, "Oh, Charlie and Cupcake v. DHS, you know, Michael's dogs." And then just putting some numbers and dates behind it. The abuse is bad enough.

Peter: Right. You know how lawyers keep getting in trouble for using ChatGPT and it produces, like, completely fraudulent cases?

Rhiannon: Yeah.

Michael: Yeah, fake.

Rhiannon: Fake sources. Yeah.

Peter: It's not substantively different from what's happening here.

Michael: Right.

Rhiannon: No.

Peter: So there's another element of this opinion where they also hold that these habeas claims need to be brought in the same jurisdiction that the people are being detained in, which allows the government to detain them in jurisdictions with hyper-conservative judges, right? Knowing that any habeas claim is gonna be brought before them. And that's notable because the Trump administration has basically prepared for this. And that's, like, what they're doing, right? They're bringing people to Texas, they're bringing people to Louisiana where they can bring them before the psychos in the Fifth Circuit.

Rhiannon: Right. The most conservative immigration judges in immigration court, and the most conservative federal judges in federal court.

Michael: Right. Which is, I think, the strongest evidence we have that the Supreme Court very much knows what it's doing here. It is outsourcing the dirty work to the most die-hard conservative immigration and federal judges. Everybody fully understands what's happening here. There's no mistaking this.

Rhiannon: Yeah, exactly. And the ruling here on jurisdiction, the requirement the court is saying that a detainee file their habeas claim in the jurisdiction that they're being detained in is also really, really malicious. Even though this is unsaid in the opinion, we know that people have already been deported in this way to El Salvador. They are in CECOT, the concentration camp in El Salvador. If the only way to file your habeas petition is from the jurisdiction you're being detained in, that is impossible if you are already in El Salvador.

Peter: Well, maybe we should talk about the good aspect of this opinion because it addresses your concerns, Rhi.

Rhiannon: [laughs]

Peter: The court says that anyone subject to removal is guaranteed due process.

Michael: Ooh!

Peter: Which should be sort of obvious, right? Because that's in the Constitution.

Michael: [laughs]

Peter: Except, like, it's pretty uncontested that to this point the administration has been conducting deportations without due process.

Rhiannon: Yes.

Peter: Leading to people who even the administration admits are not gang members being deported to a foreign prison, right? The court says that these folks are all entitled to notice and an opportunity to be heard, which I guess is reassuring in the sense that, like, we're operating one level above Fox and Friends, right? But it's very unclear what this actually means because the court isn't specific. And without clear direction, it's up to the Trump administration to decide what due process means, right? What adequate notice and opportunity to be heard means. And as Rhi is pointing out, it's also not addressed that this has already happened, that people have been deported to a foreign gulag without process, right? But now, these guys bringing this case haven't been deported, which I think is why the court isn't mentioning it. But, like, we're sort of, again, just in limbo on this point, right?

Michael: Right.

Peter: Like, well okay, you're saying that there's due process. Some people have already been shipped out, obviously without it. So what does this all mean? And there's a really disturbing undertone to this portion, where the majority here is just sort of pretending that everything is on the up and up. We don't know who wrote it, but it feels like Gorsuch, we've decided, I think. I'm now picturing Gorsuch when I think about it.

Rhiannon: I think it's Gorsuch.

Michael: Yeah.

Peter: He says the government expressly agrees that TDA members subject to removal under the Alien Enemies Act get judicial review. Sort of being like, of course they get due process. Everyone agrees with that. And it's like, yeah, the government agreed in their briefs.

Michael: Right.

Peter: That everyone gets due process. But do they agree in reality?

Rhiannon: Yeah.

Peter: Because in reality they didn't give everyone due process. That feels like pretty good evidence that they actually don't agree.

Michael: Right.

Peter: They boarded them onto a plane and shipped them out of the fucking country without a hearing. So what the fuck are you talking about?

Rhiannon: Yeah.

Michael: Yeah.

Peter: They're just openly laundering the Trump administration's blatantly illegal actions. They are consciously evading due process. They are lying to the courts about it, and here are the conservatives dressing it all up and making it look nice.

Rhiannon: Yeah.

Michael: What really settled it on Gorsuch for me as the author, by the way, is there's a line we talked about in prep where it's so smarmy, where ...

Peter: He says, "For all the rhetoric of the dissents."

Michael: That's the one. "For all the rhetoric of the dissents."

Rhiannon: It's just rhetoric to Gorsuch, it's just rhetoric.

Michael: And the thing is, there are a number of justices who would be smarmy and self righteous enough to use that language, that condescending language. But I feel like only Gorsuch is condescending enough to do that while hiding behind the per curiam anonymity of your authorship.

Peter: Mm-hmm.

Michael: That's like a special level of condescension and self righteousness that I feel like is only Gorsuch.

Peter: Yeah, I think that's right. So that's the majority opinion, and there's really not much more to it. I mean, the opinion itself, very short.

Michael: I was gonna say probably quicker to read it than listen to us discuss it, to be frank.

Rhiannon: Yeah, what is it? Three pages?

Peter: Something like that.

Rhiannon: Yeah.

Peter: And that's really it. The whole reasoning is just sort of like, "Ah, this is core habeas. This is quintessential habeas."

Michael: Yeah.

Peter: Habeas corpus, this right that stretches back 800 years, a time when you couldn't travel three miles, is actually the quintessential vehicle for dealing with these deportations to a mega prison in El Salvador, when you think about it. I don't know if you guys have thought about this, but it's quintessentially ...

Rhiannon: Yeah.

Peter: It's so fucking stupid.

Michael: Yeah. So yeah, Kavanaugh writes a concurrence. Again, like, why are you writing a concurrence if you signed onto a per curiam opinion, first of all? Second of all, why are you writing this concurrence? It's, like, four paragraphs. It has apparently nothing to say. But the one thing he does is he's like, "Everybody's always known that removal is part of habeas." And he cites some cases like Peter said. One of them is like, removal is not part of habeas. It's the fucking gall. I think that one is the one I want to talk about, but I just want to talk about the abuse of precedent. And so one of the cases he cites is Kiyemba v. Obama, which is a 2009 DC circuit of a court of appeals opinion. I want to talk about this case because it just makes me so angry that he would cite it in this context. Kiyemba v. Obama is about Uighurs who fled China because they feared imprisonment and torture in China.

Rhiannon: Yeah. On the basis of their ethnicity, on the basis of their religion. Yes.

Michael: Yes. To Afghanistan, where then in the aftermath of 9/11, had their villages being bombed by the US. So they fled Afghanistan, got picked up crossing the border into Pakistan, and then the Pakistani government gave them to the US and was like, "Here's some fucking Taliban or Al Qaeda for you." And they got put in Guantanamo Bay. And—in 2003, in Guantanamo Bay and stayed there for years. For years. Within months, the federal government was like, "Oh, these aren't actually enemy combatants. These are refugees." And then were just held in our torture camp for years. And that is core habeas. Like, these people were essentially kidnapped.

Peter: Unlawfully detained.

Michael: Unlawfully detained.

Rhiannon: Right. The fact of my detention is illegal.

Michael: And here's the thing that's so galling about this: the government, again, didn't contest that they were really enemy combatants, but we couldn't send them back to China because it's illegal under US law to remove someone to somewhere where they have reasonable fears of being imprisoned and tortured and persecuted, which is precisely what this case is about!

Peter: [laughs] Right. That's what we're actively doing in this case.

Rhiannon: Right?

Michael: Right! Is what these people don't want. They don't want to be—it's fucking insane! It's insane.

Rhiannon: Yeah. And Kavanaugh is citing it, saying ...

Michael: The balls.

Rhiannon: "This is all habeas."

Michael: The balls. The whole point of Kiyemba was like, the judge was like, "Look, they're not saying core habeas is a removal thing. They're saying the US has to release them, and if we can't send them to China because they are gonna be persecuted there, and if we can't send them to Afghanistan because it's still a war zone, and nobody else will take them, we just have to release them into the US. We don't have to make them citizens. They just have to be paroled into the US until we find a country who will accept them." This wasn't about removal. It was about release, and it was about where they could be released to. And we know this because it was mooted. When it got to the Supreme Court it was mooted because a country took them. The country was like, "All right, we'll take them as refugees," and they got sent to that country. Like, that was it. It makes me so fucking angry.

Peter: By the way, the only reason that that court case made it anywhere is because some CIA guy showed up at Guantanamo and was like, "People are Chinese."

Michael: [laughs]

Rhiannon: "Wait, these are Uighur Muslims. What are we doing here?" The Muslims that are supposed to be in Guantanamo, they're from a different part of the world.

Michael: Yeah.

Rhiannon: You know?

Peter: Just, like, combating waves of racism, just smashing against each other.

Rhiannon: Yes.

Michael: Yes.

Rhiannon: And it's the one fucking CIA guy that can spot it because he's been at all the black sites.

Peter: That woke CIA guy.

Rhiannon: Yeah.

Peter: The thing about the Kavanaugh concurrence is that it's very clear that he's doing this thing that he has started to do a lot now, which is be like, "This decision's not that bad when you think about it." Like, he did this in Dobbs very famously, where he was just sort of like, "Yeah, now the states can decide." And, like, that was his concurrence. It was like, it was written for, like, a high schooler or something.

Rhiannon: Yeah. He does this, like, italicization thing where he's, like, emphasizing basic words to be like, he's talking to you like you're in kindergarten. "Importantly, as the court stresses, the court's disagreement with the dissenters is not over whether the detainees receive judicial review of their transfers. The only question is where that judicial review should occur." It's like, thanks for emphasizing 'whether' and 'where.'

Peter: Right. Also, like, you've contributed nothing. Like, everyone who understands the law can gather this from the majority and the dissents. So, like, what are you adding here? And I think what he's really doing is—we talked about the judicial audience before, that, like, conservatives in the conservative legal movement are very concerned about disciplining the judges on the Supreme Court. And they've been very successful in sort of creating a political and social culture that keeps them in check, so that if you step out of line, everyone's yelling at you, all your colleagues are mad at you, and that matters, right?

Peter: It used to be sort of the opposite, that the people that justices interacted with socially and professionally 30 years ago were predominantly liberal, right? And so conservatives were always worried that this was pulling justices to the left. The thing about Kavanaugh is that you can tell that he, like, has some lib friends or something. And he, like—the fact that he's widely hated by liberals bothers him. And so he writes these concurrences to be like, "It's not as bad as you think, guys. Like, we can all still be friends. You can still invite me to your parties and it's okay." Like that's what he's doing with these.

Michael: Mm-hmm.

Rhiannon: Yeah, very dumb, very cowardly, very, like, high school debate bullshit. It's very stupid. Sotomayor writes a dissent here. You know, we should say of course, it's a per curiam opinion, you know, just written as the voice of the court. But from the number of people in dissent, we know that this is a five-four decision. Amy Coney Barrett joins Sotomayor's dissent, in large part, for most of the sections here of the dissent. And it's a good dissent. Sotomayor points out all the problems here, points out the misuse of precedent in the per curiam opinion and in Kavanaugh's concurrence. You know, just to run through the problems of this holding that Sotomayor points out, some of which we've discussed already, let's talk about, like, the government appealing the TRO in the first place. Sotomayor points out generally a TRO isn't even appealable. It's appealable if, you know, it would, like, create an emergency situation for the government. But Sotomayor points out, like, this was a ...

Michael: What's the emergency?

Rhiannon: What's the emergency?

Peter: The emergency is we've got to do human rights violations.

Rhiannon: We've got to do human rights violations.

Michael: I have to do it immediately. I'm freaking out.

Rhiannon: For these 14 days. It's a 14-day pause on deportations.

Peter: Well, here's the thing about temporary restraining orders—and this might seem like a little bit convoluted if you're not a lawyer, but basically what'll happen is, like, if you're in a legal dispute, and the person you're in a dispute with is about to do something that would be irreparable ...

Rhiannon: Right. Right.

Peter: Like, let's say you're in a dispute about whether your neighbor can build a building on their property. And then they start building it, and you say, "Whoa, whoa, whoa. You can't just start building it." What you would do is go to court and you would seek a preliminary injunction. But there's a problem. The preliminary injunction might take a bit to hash out, so what do you do in the meantime, you seek a TRO, which is even more immediate, basically being, like, "While the preliminary injunction is being sorted, can I get a temporary restraining order saying he can't build right now?"

Rhiannon: Pause the building.

Peter: Just hold off. Just hold off. Hold off.

Michael: Hold off two weeks while we discuss the preliminary injunction.

Peter: Right. That's it.

Michael: That's it.

Peter: So—and the preliminary injunction itself is preliminary, as the term implies, to the, like, actual substance of the litigation. So the TRO is, like, multiple levels of preliminary, so the idea of, like, appealing it is sort of inherently bizarre because again, it's about to be sorted out. It's about to be sorted out.

Rhiannon: Yeah.

Peter: It's just something that lasts a week or two in almost every single case. So, you know, this might seem sort of like, dumb and technical if you're not a lawyer, but yeah, the idea of appealing a TRO like this one, it's—it just doesn't make any sense.

Rhiannon: Yeah. And then Sotomayor points out, you know, like, on the substance as well, on the argument in this appeal of the TRO, like, okay, Supreme Court, whatever, you vacate the TRO. But they have shoehorned in the ruling that also, like, the whole proceeding is brought under the wrong laws and now needs to be individualized habeas petitions.

Peter: Right.

Rhiannon: All of this within an appeal of a TRO. Like, they're putting in all of this substantive law, actually ruling on major legal issues in, like, what is kind of like a tiny case. Sotomayor says, like, this isn't core habeas, as we've talked about. And if it was, then these are major legal decisions. This should be fully briefed. This should be argued in front of the Supreme Court. This is decided on the shadow docket. This is an emergency ruling. And Sotomayor says, as we've said, like, this doesn't have to be habeas at all. And in fact, as it applies to these plaintiffs, they're already in detention. They're not challenging their detention, they're challenging their removal. It's their removal under a statute that is being applied to them. The remedy that they're seeking is not to be released from custody. Sotomayor says, quote, "Their detention predated the proclamation, and was unrelated to the Alien Enemies Act." So if they show that they're not removable under the Alien Enemies Act, they aren't even getting out of detention. It's not habeas. And the dissent also, I think, really accurately points out the risks that are inherent in, like, funneling all of these claims into individual habeas petitions. Like, there's problems here with, like, access to counsel.

Peter: Right.

Rhiannon: Right? Like, sure, you can file your own habeas petition, but all of these folks don't have a lawyer for this.

Peter: Here's the thing. I don't want to get too ahead of ourselves, because the ACLU has already filed for a habeas class action that would put them all together. But the idea that you could litigate every habeas claim?

Michael: Oh, it's insane.

Peter: In the midst of a mass deportation is preposterous. And I think we had talked about these numbers in prep. Nationwide, there are 300,000 cases a year in the federal district courts. So let's say the Fifth Circuit handles 15 percent of them. That's what, 45,000 cases a year. Now think about the mass deportation plan that Donald Trump has in mind, right? He's talked about 20 million people. Cut it down 90 percent. Let's say it's two million.

Michael: Yeah.

Peter: Let's say half of that goes to the Fifth Circuit, which is probably low, right? I'm being conservative. That's a million cases. A million cases.

Rhiannon: When right now, the Fifth Circuit maybe handles 45,000.

Peter: Maybe. Maybe. That's one million cases. So the question is: Does the Supreme Court actually think that these habeas claims could be litigated, right?

Michael: Yeah.

Peter: No. No, of course not. No one thinks that. No one thinks that.

Michael: Yeah. Well, what do you do when you have a million pending habeas cases and you can't deport people? I guess you just gotta build camps here.

Peter: Maybe so. Maybe so. I mean, throughout the opinion, these conversations are being had in a way that is detached from reality.

Rhiannon: Mm-hmm.

Michael: Yes. Whereas the reality is that, you know, the one area where federal government capacity seems to be increasing and the budget is increasing is in immigration detention. They allocated billions of dollars to building out the detention facilities, the domestic detention facilities, indicating that they do expect to have large camps in the next few years.

Michael: Speaking of keeping your eye on the real world, Jackson also writes a dissent. It's very short. It's a little meta, but it's sort of on the point about this being on the emergency docket. But she tries to ground it in, you know, like, look—she's like, "As a reminder, the Alien Enemies Act during peacetime, that's pretty wild. And that should be concerning, and that should make us, you know, want to treat this with lots of care. And instead we're handling it on the emergency docket, which means it's being treated with very little care. And there's very little record left of how we decided what we decided. And that's bad."

Michael: I think that's all right. It's all good. I know what I'm gonna say here is sort of like the nuclear option, but if you're gonna be the, like, let's be real about what's going on here, you know, tack on four paragraphs at the end sort of dissent, I would love it if one of these justices would finally just say what everybody knows, which is, "Look, if Joe Biden tried this, it would be 9-0 going the other direction." And we all know it. We all know it. Joe Biden tried to cancel $20,000 of student loan debt, and the Supreme Court stepped in. And before you say, "Well, that wasn't a national emergency," it actually was. That was under the President's emergency powers, and it was under legislation passed for dealing with national emergencies. And the emergency was the COVID and the economic disruption due to Covid. It's so fucking ridiculous. It's so ridiculous!

Peter: I mean, more directly on point. Imagine if Biden had tried, like, mass prosecution of Republicans for sedition under these sedition statutes, right?

Michael: Yes.

Peter: Come on. Come on. You don't think the Supreme Court's getting involved there?

Rhiannon: Yeah.

Peter: It's just—it's just silly.

Michael: Invoking the insurrection act after January 6, and rounding up anybody who's a registered Republican. They would have fucking gone nuts.

Peter: "You've got Republican tattoos, sir. Get in line."

Michael: [laughs] Yeah.

Peter: "No, I love elephants!"

Michael: [laughs] I mean, it's a fine and it's a good point, but I do feel like there is a degree to which the liberals are still afraid of really going after the conservatives.

Peter: Yeah. They're not brave like us. I would write a concurrence about how Clarence Thomas's vote just doesn't count.

Michael: [laughs]

Peter: But no one's got the balls. All right, let's talk about the effects of this decision, because it is sort of, like, hard to trace. The immediate effect was that the temporary restraining order, the TRO, was lifted, which allows the Trump administration to continue attempting to deport people to El Salvador—at least for now. The sort of wrinkle is that they have now said you need to provide due process. And we don't know what that looks like. Which sort of leads to this—like, I have this, like, long list of unresolved questions, some of which are unresolved because it wasn't directly in front of the court as an issue here, and some of which are unresolved because the court wasn't clear.

Peter: We've talked about the fact that they said, "Well, you need to provide due process." But what does that mean, right? What does that mean, especially when we know that the government was not providing due process and is, like, actively trying to evade due process? What's the remedy if due process is violated? Just a few days after this case dropped, you had another case about the man who everyone agrees was wrongfully sent to El Salvador, and is now sitting in this El Salvadorian megaprison. And the Supreme Court held that the Trump administration needs to, quote, "Facilitate his return to the United States." But there's also agreement, it seems, in the court, at least among the conservatives, that the Trump administration can't force a sovereign nation to send this man back, right? So you're sort of seeing the limits of what's possible here. They say these people are owed due process, but if you deny them due process and ship them to El Salvador, maybe the Trump administration can just sort of say, "Well, we can't do anything. We can't do anything. It's too late. Sorry. Sorry."

Rhiannon: Yeah.

Peter: Which means there's no guarantee of due process.

Rhiannon: That's not real.

Peter: You have the overarching question of whether the Alien Enemies Act has been properly invoked, right? Because it doesn't actually, like, it's meant for being at war with other nations, not liking Venezuelans. You have the question of whether the administration's defiance of the federal judge in the case below is going to result in contempt. The administration is now saying, "Well, the Supreme Court agreed with us, so you can't hold us in contempt." All of these things still floating in the air, and I think that the general sort of vibe I get is that the conservatives are ready to make this as easy for the Trump administration as possible when it comes to these deportations. That, like, there, of course, will be the occasional bit of friction with the court, but there will be no resistance when it comes to these deportations.

Michael: Yeah.

Rhiannon: Yeah. Yeah, the court's gonna pay lip service, but it's paying lip service to the most deconstructed, minimal requirements of constitutional law in these cases.

Peter: They're putting out these abstract ideas like you must adhere to due process. But by the way, yeah, you can do mass deportations to El Salvador.

Michael: Yeah, that's the thing. That's like—there were people who were, like, calling this a mixed ruling or even celebrating it on the left of center when it first came out. But I think that betrays an almost infantile view of how authoritarianism works.

Peter: Yeah. I was very frustrated by what I saw from various people who I otherwise like, who said, "Well, this is actually good news because the court has said that the deportations must follow due process." And authoritarians aren't, like, twirling their mustache and saying, like, "A-ha, we're ending due process!" Like, that's just not how it works. They give you nominal perfunctory process, and they tell you that you're getting due process.

Michael: Right.

Peter: They violate due process and then they pretend that they didn't, right? Or they say that they can't do anything about it now. So, like, don't get excited when they reassure you of your rights, because their reassurances aren't actually worth anything. It's just like the guard at the camp says that they're gonna be nice to us. Like, what do you—no, no, he's lying.

Michael: Right. The authoritarians don't say due process no longer exists. Which makes it very incredible that there are Trump people stupid enough to be like, "We don't think they deserve due process," or whatever. But that's not how authoritarian regimes work, right? They just reappropriate the tools of due process or the law or whatever to impose their will. So of course, due process as a concept will continue to exist, and some process will continue to exist. And that process will expedite the removal of people from the United States into CECOT, and perhaps a camp in Guantanamo Bay. Or perhaps it'll just expedite the creation and filling of camps here domestically. But that's what it'll do. That's what the process will accomplish. And authoritarianism is the construction of those processes. And we are in the middle of that construction, and the Supreme Court is actively aiding in the construction of those processes. The state is being rebuilt towards those ends with the help of the Supreme Court. That's what this case is.

Peter: All right, folks. Next week, premium episode coming. We're gonna try to do something a little bit light hearted.

Rhiannon: Yeah.

Peter: A review of The Firm, the 1993 classic about what happens when Tom Cruise gets in too deep with a shady law firm. Follow us on social media @fivefourpod, subscribe to our Patreon, Patreon.com/fivefourpod—all spelled out—for access to premium and ad-free episodes, special events, our Slack, all sorts of shit Hit up our merch store, fivefourpod.com/merch. In a couple of months we're gonna be dropping some new merch, but for now we've got the classics if you want to check those out. We will see you next week.

Rhiannon: Bye.

Michael: Bye, everybody. 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.

Rhiannon: Trump signs this proclamation, invokes this law on the basis that Tren—Tren de Aragua—on the basis that Tren ...

Peter: Yeah, you're nailing the Spanish, but you're fucking up the English.

Rhiannon: [laughs]

Peter: You guys got all cocky.