Alito Chimes* at Midnight

“Unprecedented” is the word Justice Samuel Alito is using to describe the Supreme Court’s order “shortly after midnight” on Saturday to halt, for now, deportations under the Alien Enemies Act. President Trump has been using that 226-year-old law to expel foreign gang members. Yet if Mr. Trump is relying on a venerable law, enacted in 1798, the Nine played a trump card by citing an even older one — dating to 1789.The high court’s late-night order followed an emergency request by the American Civil Liberties Union. The rights group said it was acting on behalf of a group of “Venezuelan men” at “risk of imminent removal.” Even though “the matter is currently pending before the Fifth Circuit,” the high court jumped in to order Mr. Trump “not to remove any member of the putative class of detainees from the United States until further order of this Court.”High court watchers noted that the majority had acted in such haste that they didn’t even wait for Justice Alito to expound on his dissent for the record. “Statement from Justice Alito to follow,” the high court’s order said. Nor did the justices provide much in the way of reasoning. “See 28 U. S. C. §1651(a),” they said. That’s a reference to the United States Code and one of the oldest federal statutes still on the books, the All Writs Act. The law allows the court and any others “established by Act of Congress” to “issue all writs” deemed “necessary or appropriate” by judges. The Act is a reminder of the sweeping powers given to the courts by the Framers in the Constitution and early Congresses. The all-writs text emerged in the Judiciary Act of 1789, which put few limits on courts’ ability to issue such “writs,” as long as they are “agreeable to the principles and usages of law.” Legal scholar Jennifer Luo calls the law “perhaps one of the most vaguely worded statutes in existence” and notes that the government has “used the Act sparingly and often referred to it as a ‘statute of last resort.’” The law has largely been invoked by the executive branch asking courts to issue orders, and the most recent applications of the All Writs Act involve prosecutors using it to get judges to allow unlocking mobile phones to aid criminal probes. The high court has cautioned that while the Act “empowers federal courts to fashion extraordinary remedies” — as in the evidentiary dispute in Harris v. Nelson — the law does not allow “ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate,” as the Nine held in Pennsylvania Bureau of Corrections v. Marshals Service. Does today’s deportation dispute justify the high court’s own use of the All Writs Act? Justice Alito, for one, thinks not. His belated dissent takes exception to his colleagues’ use of that Swiss Army Knife of a law to justify what he depicts, plausibly, as a breach of the high court’s standard protocols. He laments how, “literally in the middle of the night, the Court issued unprecedented and legally questionable relief.” He further chides his colleagues for acting with what he appears to consider unseemly haste.“I refused to join the Court’s order,” he says, as there was “no good reason to think” that “issuing an order at midnight was necessary or appropriate.” He reckons that “both the Executive and the Judiciary have an obligation to follow the law.” The president, he says, “must proceed under the terms of our order in Trump v. J. G. G.” — which insists on due process rights in deportation cases — “and this Court should follow established procedures.”Justice Alito is joined by Justice Clarence Thomas. They often emerge as the savviest of the justices. Their dissent raises the question of why the court is in such an all-fired rush. One theory is that the administration has failed to “facilitate” the release of Kilmar Abrego Garcia from a Salvadoran jail. The court doesn’t suggest how President Trump might achieve that. Maybe the court can hit President Bukele directly with one of their writs.________* The phrase is Falstaff’s: “We have heard the chimes at midnight …”

Alito Chimes* at Midnight

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