On today’s BradCast: The decision handed down by the corrupted U.S. Supreme Court last night just after we got off air was confusing, divided, muddled and, at closer inspection, as discussed with today’s guest, even grimmer than it first appeared. [Audio link to full show follows below this summary.]
FIRST UP, however, what qualifies as the brighter news of the day, believe it or not…
- Markets continued to plummet for a fourth straight day following Donald Trump‘s punishing, unilateral, worldwide (except for Russia) tariffs announced last week at the White House. But the push-back against his authority to issue them, granted by Congress, has begun to grow more quickly than one might have expected among Congressional Republicans.
- And, just before airtime today, a Trump-appointed federal judge ruled in favor of the Associated Press in its lawsuit against the Administration after it banned the news outlet from coverage of certain events in the White House and on Air Force One. The AP has accused the Administration of unconstitutional viewpoint discrimination in violation of the First Amendment, in response to the outlet’s decision to refer to the Gulf of Mexico by its internationally recognized name, rather than as the Gulf of America as Trump has attempted to mandate via Executive Order.
THEN, we’re joined by Slate legal journalist MARK JOSEPH STERN to unpack the confusing — and troubling — 5 to 4 opinion issued by SCOTUS last night, largely allowing Trump’s use of the Alien Enemies Act of 1798, for now, to detain and deport migrants to foreign gulags. Stern, who describing the ruling last night as one that “couldn’t be more ominous”, explains that the Court’s brief, split decision is “going to cause a lot of confusion, chaos and uncertainty in the lower courts, and for these migrants, who the administration is trying to disappear to El Salvador.”
While the five men on the Court disagreed with the four women (including the Court’s lone female GOP-appointee, Justice Amy Coney Barrett) on most aspects of the ruling, they all agreed, at least, that deportees must be afforded the opportunity to challenge their detention in court before removal.
The terse, but alarming opinion was issued via the Court’s “shadow docket” without full briefing or oral argument, in response to an emergency appeal in a challenge by Venezuela migrants deported under the AEA with no due process whatsoever. The Trump Administration invoked the wartime law — which, according to its text, may only be used to detain and deport migrants from countries that have “declared war” on the U.S. — to send Venezuelans they claim to be violent gang members to a gulag in El Salvador. And while the full Court decreed that such detainees must be allowed to challenge their detention in the jurisdiction in which they are detained, it will seemingly be impossible for the hundreds now already in a prison outside of the country to do so.
The Trump Administration’s view, observes Stern, is that, once a migrant is locked up in a foreign gulag, they “have had their Constitutional rights permanently extinguished. They have no right to due process or any other rights, procedural or substantive. And further, that federal courts have no jurisdiction to order any kind of relief to help them.” That is the case, according to the Government in the related Kilmar Abrego Garcia matter, even when someone has been “mistakenly” deported.
There are all sorts of troubling issues wrapped up in the majority’s unsigned opinion, including the fact that they simply took the Administration at its word on several key points, despite Trump’s Dept. of Justice repeatedly lying to and/or thumbing their nose at direct orders issued by U.S. District Court Judge James Boasberg, whose impeachment Trump subsequently called for. That call led to a gentle reprimand from the Chief Justice a few weeks ago, even if John Roberts sided with the majority in favor of Trump anyway in Monday’s decision.
“We, as a Nation and a court of law, should be better than this,” wrote Justice Sonia Sotomayor in her blistering dissent, excoriating the majority. “The government’s conduct in this litigation poses an extraordinary threat to the rule of law,” she warned, ominously noting that it is now the official position of the Court that even “United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this nation’s system of laws is designed to prevent, not enable, their rise.”
Stern shares her concern, particularly about the likelihood of U.S. citizens being swept off the streets and shipped off to foreign prisons. He adds: “By the way, something like 1-1.5% of individuals detained by ICE every year are actually U.S. citizens. The burden falls disproportionately on tribal citizens and Puerto Rican people on the mainland, due to racial profiling and other kinds of stereotyping. So this is not a far-off hypothetical.”
He is also concerned about what the string of recent decisions by the corrupted high court in favor of the Administration and in contradiction to lower court judges, is likely to signal.
“I am worried that the Court is just going to start rubber-stamping these Trump requests for emergency relief, and refuse to consider the extraordinary and immense harms that will be inflicted on the American people by doing so,” he explains. “That five men and sometimes Justice Barrett have decided that the real problem isn’t Trump and his lawless crusade. The real problem is district court judges standing in his way. If that is the approach that the Supreme Court is taking — if they really do think that the real problem is judges and not the Trump Administration’s unprecedented assault on the rule of law, then again, we are all in grave danger. It’s not just Venezuelan migrants.”
Much more insight, disturbing details and outrage during my disturbing conversation today with Stern.
FINALLY… Desi Doyen joins us for our latest Green News Report after deadly, widespread extreme storms and flooding over the weekend; as Trump’s trade war is increasing the cost of reconstruction for disaster victims; and as Senate Republicans work to strip California of its clean air car standards…
“Will they be activists?” (Here Come De Conservative Judges, 2009).