'Truly galling': Law expert accuses Justice Alito of 'inventing' procedure to help Trump
In a column on Monday, Georgetown University Law School Professor Steve Vladeck told what he believed Justice Samuel Alito got wrong in his dissent over the weekend.
In a 1 a.m. decision Saturday, the Supreme Court temporarily blocked President Donald Trump's and his administration’s ability to use the Alien Enemy Act to remove anyone detained in the Northern District of Texas. But it wasn't until late that night that Alito's dissent to the order was published using dubious reasoning, Vladeck said Monday.
A collection of immigrants that the administration claims are "gang members" was set to be sent to a prison in El Salvador, but the Supreme Court's order temporarily paused the deportation.
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According to his summary of Vladek's report, Alito "attempts to invent a series of procedural objections to the majority’s intervention that … simply don’t exist."
In the five-page opinion, Alito makes arguments, "some of which are just wrong; some of which are non-sequiturs; and some of which are truly galling," wrote Vladeck.
He cites seven main points in his analysis. First is the "almost specious" claim that the Supreme Court doesn't have jurisdiction over the case.
"The Supreme Court’s power to review cases from the lower federal courts is remarkably capacious," said Vladeck.
In another part of the decision, Vladeck confessed that he didn't even fully "understand" Alito's point.
“[U]nder this Court’s Rule 23.3, ‘[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof,’” Alito wrote in the dissent.
"The Rule, as correctly quoted by Alito, requires applicants only to seek emergency relief from the relevant lower courts before asking the Supreme Court for the same; it does not require those courts to rule before the Supreme Court can step in," Vladeck wrote with his own emphasis. "Nor would the alternative make any sense. Yes, the Court in the ordinary course will usually wait for the lower courts to rule before it steps in. But there’s no formal requirement that the Court wait. And Alito doesn’t quite bring himself to argue otherwise. The bullet point thus implies nefariousness where none exists."
But there was another concerning point from Alito, Vladeck said he found "troubling."
"[A]n attorney representing the Government in a different matter informed the District Court in that case during a hearing yesterday evening that no such deportations were then planned to occur either yesterday, April 18, or today, April 19," Alito wrote.
Vladeck explained that this is about the courtroom conversation between Justice Department lawyer Drew Ensign and Washington, D.C. District Court Judge James Boasberg during an emergency hearing on Friday.
At issue was "J.G.G. case (where the ACLU was also trying to get a new TRO to block the apparently imminent AEA removals of folks from Texas)," said Vladeck.
Those listening to the proceedings noted, "Ensign said he was unaware of any flights scheduled for Friday, but that he was specifically instructed to 'reserve the right' for the government to conduct removals on Saturday, April 19. In other words, the DOJ lawyer did not say what Alito said he said," cited Vladeck.
The law school professor said that it matters because Alito claims in the dissent that the Court stepped in “hastily and prematurely.”
"But to get there, Alito had to misstate (if not misrepresent) what the government had told Chief Judge Boasberg, and then discount the ACLU’s credible allegations, as backed up by numerous media reports, that additional removals were impending," wrote Vladeck. "Ensign had gone out of his way to 'reserve the right' to have removals take place on Saturday—which seems to rather decisively undercut Alito’s claim that the Court acted 'prematurely.'"