SCOTUS ruling

[Rideback]

"Trump v. J.G.G., Expedited Removal, and the Disappearing Constitution
Or
This is a really bad decision but our current system makes it worse.
Normally I’d walk you through every detail—case history, legal doctrines, precedent, dissent. But this moment is too important.
The big picture has to come out now, before the window closes.
Quick Clarification First:
No, the Court hasn’t ruled on Kilmar Garcia Abrego yet.
The administrative stay is just that—administrative. It means they’re pausing things while they decide whether to take the case or grant an emergency application. It's normal and doesn't reflect anything about how they will rule.
Don’t read too much into it.
Not yet.
Save your outrage.
We’re going to need it.
What Happened in Trump v. J.G.G.
Today, the Supreme Court issued a per curiam (unsigned) opinion dismissing a challenge brought by Venezuelan nationals detained for removal under the Alien Enemies Act—yes, the 1798 one.
There are many reasons a case can be unsigned—but in this case, I wouldn’t be surprised if no one wanted to take credit for it.
The Court didn’t rule on whether Trump’s use of the AEA is legal. Instead, they said the challenge was procedurally flawed: it should’ve been brought as a habeas corpus petition.
Translation?
The Court dodged. They didn’t weigh in on whether Trump’s use of the Alien Enemies Act is legal in this context—just that this challenge wasn’t the right procedural vehicle.
By the way, this is 100% on brand for Roberts. The man could dodge accountability in a glass box with nowhere to hide. If legal evasiveness were an Olympic sport, he’d have a gold medal and a lifetime appointment.
Importantly, they left the door open to future challenges.
The Court didn’t take all due process away—at least on paper.
But we need to talk about why that safety valve might not be enough.
The Plenary Power Problem
In immigration law, the federal government has nearly unchecked power. Courts have long treated immigration as a realm where constitutional protections don’t fully apply.
This is how you can end up with people inside the U.S. being deported for things that would be protected under the Constitution in any other context—like in Bridges v. Wixon, where political speech led to a deportation order. And it may ultimately justify people inside the U.S. being denied any due process in their immigration case.
Borders Within the Border
I often explain the next concept this way:
We don’t just have one border. We have many. Invisible borders divide people based on legal status, not geography.
Citizens at the top
Then green card holders
Then visa holders
Then asylum seekers
Then those with no status at all
There's more levels than that--this is just a simplified breakdown.
At each step down, the government can assert more expansive plenary power—arguing that fewer constitutional protections apply to you in the immigration context. And courts often let them.
That’s why students protesting today may be in real danger—not of criminal prosecution, but of removal proceedings.
And yes, you can still be deported under existing law just for being a member of the Communist Party—see 8 U.S.C. § 1182(a)(3)(D). That would be protected as assembly--but you can still be deported for it.
Expedited Removal: The End Run Around Due Process
Expedited removal is a process that allows immigration officers—not judges—to issue deportation orders on the spot.
No hearing.
No lawyer.
No appeal.
Just… gone.
Originally, it was limited to the border and recent arrivals.
But under Trump, it expanded.
And under Trump 2.0, it’s back—and bigger.
In January, it was brought back through Executive Order 14159, followed by a DHS notice in the Federal Register—expanding expedited removal to its statutory limit: anyone anywhere in the U.S. who “can’t prove” they’ve been here for two years.
There was no notice-and-comment period.
There was no opportunity for public input.
And under the current version of the INA, these kinds of DHS designations are considered to be made in the sole and unreviewable discretion of the Secretary—which means courts can’t second-guess them under the Administrative Procedure Act.
That needs to change.
And note that while AEA and ER are not the same, they will absolutely be used in tandem.
Why This Decision Is So Dangerous
The Court didn’t say Trump’s use of the Alien Enemies Act was legal—they just said the challenge came in the wrong form. They pointed to habeas corpus as the proper route.
But here’s the catch: not everyone in expedited removal even has access to habeas.
And those who technically do? They may be deported before they can use it.
So yes, a sliver of legal recourse remains on paper—
but the system is built to slam the door before you ever reach it.
What You Can Do Right Now
Expedited removal—at a bare minimum, within the U.S.—must go.
Call your state and local officials.
Immigration is federal, but cooperation with ICE is not.
Sheriffs and police can refuse to help unless legally required.
Support Know Your Rights efforts—urgently.
Right now, what rights non-citizens actually have under expedited removal is murky at best. That makes legal training on the ground essential.
We need:
Clinics and nonprofits actively researching what phrases might trigger protections as well as which rights people actually or at least arguably have.
Field-tested guidance for what people can say in high-pressure moments.
Community groups spreading that knowledge, fast.
Call your local ACLU chapter, immigrant rights org, or mutual aid group.
Offer to help fund them.
If you’re a lawyer, volunteer for legal research or outreach.
Here are some phrases that may help, depending on the situation:
“I want a lawyer.”
“I do not want to sign anything.”
“I want to see an immigration judge.”
And if you’re a citizen?
Use your rights. Loudly.
Speak up when you see something.
Film everything.
Don’t be afraid to talk directly to ICE or CBP agents. Tell them what you think.
You’re allowed to say it—and they need to hear it.
Lawyers: Prepare for the Storm
And if you’re a lawyer? Especially an immigration lawyer?
Get ready. Habeas is coming.
Get yourselves admitted to federal court.
Seek out CLEs on habeas and expedited removal. If they don’t exist, ask for them.
If you know your habeas, offer to teach.
Reach out to your local Fed Courts profs—they’ve got the knowledge, and we need it now. Ask for help with CLEs.
This isn’t just litigation prep—it’s constitutional triage.
And please, if you are in a position to challenge this on a broader scale, please, for the love of god, sue.
Final Thought:
Trump v. J.G.G. is not just a procedural ruling.
It’s a warning shot.
The Court didn’t kill due process today.
But expedited removal might—and if it does, it won’t be with a bang, but with silence. Disappearances. No hearings. No records.
We’ve seen this playbook before. We know how it ends.
So if you’re angry? Good.
But if you're looking for something to rally around? This is it.
It’s time to show the world that we learned something—from the Danes, from the Bulgarians, from every moment in history when people stepped up before it was too late.
We will not let them take our neighbors.
Not just because they’ll come for us next—and they will—
but because we know exactly what we stand for."
Arynconrad