The Brooklyn Rail

SATURDAY, APRIL 19, 2025
ORDER IN PENDING CASE

24A1007 A.A.R.P., ET AL. V. TRUMP, PRESIDENT OF U.S., ET AL.

There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court. See 28 U. S. C. §1651(a). Justice Thomas and Justice Alito dissent from the Court’s order. Statement from Justice Alito to follow.

This succinct order was issued by the US Supreme Court at 1 a.m. on Saturday the 19th to stop the Trump administration from shipping another group of detainees from the US to a dictator’s prison in El Salvador without those detainees having gone through any due process concerning their actual legal status. This extraordinary move by the Supreme Court was made after the American Civil Liberties Union filed an emergency application to the Court on Good Friday, asking the court to intervene because the administration had already loaded detainees onto buses ready to be transferred to planes to take them to the CECOT prison in El Salvador.

This is the Court acting swiftly to slow down the administration’s hellbent rush to bypass the bedrock value of due process and equal treatment under the law in America. This is the Court saying, “Not so fast.” ¹

Chief Justice John Roberts also chose to do an end run, in effect, around Justice Samuel Alito, who declined to issue a stay in this matter as he could and should have done in his role as supervisor of the Fifth Circuit court of appeals.

The Department of Homeland Security was here taking a page from the DOGE handbook, encouraging Trump agents to move fast in order to overwhelm the judicial system’s ability to respond in time to their obviously illegal actions. By the time judicial review happens, the actions are completed and much more difficult to undo. “Kilmar Abrego Garcia is in El Salvador now, and out of our control. He’s now under the control of the World’s Coolest Dictator, and who knows what he’ll do.”

The legal maxim “justice delayed is justice denied” was employed most forcefully by Reverend Martin Luther King Jr. in his “Letter from Birmingham Jail,” smuggled out of prison on April 16, 1963:

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was “well timed” in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “Wait!” It rings in the ear of every Negro with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.”

With Samuel Alito and Clarence Thomas, it’s all about delaying justice. Trump’s lifelong practice, learned from Roy Cohn, has always been to speed up when you are committing the crimes, and delay when the law comes after you. Delay long enough, and you may get elected President again and the Supreme Court Justices you nominated will grant you blanket immunity from prosecution while president, in a nauseatingly circular dance.

If this autocratic coup fails, and the rule of law survives, all of the people you see in the above photograph being lectured to by the odious Stephen Miller should end up in prison, without exception.

Twenty years ago, the theory world was obsessed with “the state of exception.” Italian philosopher Giorgio Agamben published his treatise on the subject in 2003, and it was translated into English and published by the University of Chicago Press in 2005,² when many others followed suit. The trigger for many was 9/11 and the subsequent “War on Terror,” with the US and other Western states invoking special circumstances to set aside legal restrictions. President Bush authorized the indefinite detention of noncitizens accused of terrorist acts, and their trials by military commissions. Agamben argued that these special extensions of power, or “states of exception,” have historically been used to transform democracies into authoritarian states. The “State of Exception” (Ausnahmezustand in German) is a political concept originally developed by the Nazi jurist Carl Schmitt in the 1920s.

Trump is claiming an immediate emergency in the form of an “invasion” of the US by malign foreign migrants, requiring the setting aside of due process. This is what the Supreme Court is currently dealing with. But there are more and more indications that Trump does not intend this state of exception to be temporary.

On April 28, Rachel Maddow interviewed Elizabeth Goitein of the Brennan Center for Justice, who raised the alarm about Trump’s recent action to turn a sixty-foot wide, 170-mile strip of land running along the Mexican border, from San Diego to El Paso, into part of Fort Huachuca in Arizona, and authorizing US Army active-duty soldiers to detain and search trespassers on this new Army land, and to “do crowd control” there. This is clearly an attempt to get around the Posse Comitatus Act, prohibiting the use of military personnel for civilian law enforcement activities unless specifically authorized by Congress or the Constitution. If Trump and Miller get away with this on the border, and are able to subvert the strict separation of the military from domestic actions, it is easy to imagine what that will make possible elsewhere in the country.

Rev. William Barber was arrested today, on April 28, for praying in the US Capitol rotunda. He was praying against the Republican budget bill and its cuts to social safety-net programs including Medicaid, and chanting, “Against the conspiracy of cruelty, we plead the power of your mercy.” He had delivered a sermon on the Capitol steps and delivered a Moral Monday address at the US Supreme Court earlier that day. Rev. Barber, who is the founder of the Center for Public Theology and Public Policy at Yale Divinity School, said, “What we hope is that folks will see this and it will begin to remove some of the fear, and people will understand that this is the time—now—that we must engage in nonviolent direct action to register our discontent.”