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- [00:01]
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- [01:00]
Michael Popak
We got a new filing at the United States Supreme Court which indicates that even Donald Trump's most ardent supporters, like Justice Alito, don't trust them either. We know the United States Supreme Court is losing patience with Donald Trump. That's what a 1am ruling issued over the weekend says to the American public. We don't trust you. We are deeply skeptical of the positions that you're taking in court. And even a one liner in Justice Alito's own dissent, where he dissented from the Court's decision in the middle of the night to stop the Trump administration from continuing to deport a class of people in the Northern District of Texas to the dark dank recesses of an El Salvadorian prison without further order of the court. Even Alito reminded Trump that he needs to abide by the United States Supreme Court decision.
- [01:56]
Co-host
Sure.
- [01:57]
Michael Popak
He says, well, I just can't agree with my brethren and issue this 1:00.
- [02:02]
Co-host
In the morning decision.
- [02:03]
Michael Popak
But Trump, you got to comply. I mean, when you, when Alito is saying that, you know there's deep skepticism at the United States Supreme Court, you know else, you know where else there's deep skepticism Right here on the Midas Touch Network and Legal AF on Michael Popak. Let's dive into the new filing. We were expecting it because when it was issued at 1 o'clock in the morning on Saturday, the Supreme Court made a note that Alito as a placeholder was gonna be issuing his dissent. And he has. Now look, let's put this in context. In a new poll run by CNN, 58% of America last time I Looked, that was the majority said that if Donald Trump doesn't obey the United States Supreme Court, he should be impeached. Sure, MAGA is in a different universe. They're not tethered to the, to, to this planet and they think, no, we like watching the defiance of the court system. But everybody else in America believes that that is completely inappropriate and it'd be grounds for impeachment for Donald Trump. He's losing, he's losing his independence. He's losing any Democrats that gave him, that gave him the benefit of the doubt and he's losing Republicans as well. He's just getting that hard group of Maga, let's look at Alito. Alito too. Speaking of hard group of Maga, I'm gonna start at the back of his five page ruling and then work my way forward because sometimes buried between the lines or in the lines is, is a, you get the sense of where the nervousness, where the anxiety, where the agita, it's a legal term for the United States Supreme Court comes from the fact that he had to waste ink in a five page decision at dissent and say the following. Here's what Alito said at the end. He just filed this. Both the executive and the judiciary have an obligation to follow the law. He was talking about how the Supreme Court may not be following proper procedure in issuing their order. I'm sure they didn't. They had to hit the stop button. They had to stop issue the stop, you know, issue a stop work order to Donald Trump immediately or those people were gone to the wind. El Salvador. But he continues citing to the case from October 7th. Sorry, August, where am I? Sorry. One more time from April 7. In which the court in a relatively murky ruling that didn't, that left a lot to the imagination, said in the case of JGG and Trump, Supreme Court said, you maybe can use the Alien Enemies act. We'll take a look at that at another time. To deport people, however, you got to give them due process, although it was not defined in the, in the order, you got to give them notice not defined on what that meant, the contours of those things. And that has left a lot of problems as Trump tries to ignore the language of the order. But here's what Alito says. The executive must proceed under the terms of our order in Trump vs. JGG and this court should follow established procedures. Now what does he mean by that? I mean to Alito, it was probably a win that the April 7 order didn't have more meat on the bone, didn't have more detail cuz it gave the executive branch a tremendous amount of wiggle room to make all sorts of arguments. Oh yay, we can deport under the Alien Enemies act, we just have to give some sort of habeas corpus process, which by the way, has almost never been used for deportation. Habeas corpus has always liked to get a prisoner out of jail who's wrongfully jailed. That's not a, this is deportation. This is to prevent the jelling. But in any event, they went with the habeas corpus. You know, let's look on the shelf of what we have that might fit. Oh, habeas corpus petition. So Alito and Thomas were probably excited that the order was so short and so murky. Cuz within the murkiness, Trump could do mischief and that's what they wanted. Here though, he's reminding the Trump administration you got to follow the law. And that's what the polling is telling Donald Trump. I mean, the polling is right now terrible for Donald Trump. I'll cover that in another hot take. Let me read to you from aspects of Alito. So you know, where it's really what I call make weight. You know, he had to say something. If the case did come up from Texas, which first stop on that train is Alito. So he had to say something, especially when he was effectively overruled 7 to 2 in that 1 o'clock in the morning decision. The way how we got here quickly is that after the Supreme Court made that decision on the 7th of April in the JGG case related to Judge Boasberg's decision in D.C. that found that the Alien Enemies act wasn't properly being used by Trump and he issued an injunction. They got rid of the injunction. They said he didn't have any more jurisdiction. And they said the way for these individuals to bring their due process constitutional violation cases and challenge the Alien Enemies act is to do it in individual petitions for writ of habeas corpus in the states where they are currently being processed. Now, of course, that ignored the fact that 250 of them ended up in El Salvador without due process. But until they, until they got on the plane, they wanted them to have due process and notice. Okay? That's the ruling. That's what came out of it. So the ACLU filed a whole bunch of writs of habeas corpus in Colorado and New York and Texas, southern Texas and northern Texas. They also, when they got to a jurisdiction, they tried to create what's called a class action or what we call a putative class action until it's approved by, by the court, which is a defined group of people who are all similarly situated, who have common elements to their claims to group them together to make justice easier. They all get together and then if there's an order that's issued, an injunction that's issued a stay, or this particular order from the Supreme Court, it applies to the entire class or putative class. Now the right wing maga, Federalists, Heritage foundation, they hate class actions. They wanted to just to be about that guy and that guy and 5,000 petitions and they want to divide and conquer. And Alito had a lot of problems with the class action. It's a, it's not even really a class. It hasn't been a class. But the Supreme Court in its midnight or 1am ruling said the government is directed not to remove any members of the putative class of detainees from the US until further order of the court. So they're recognizing, at least for the concept of that 1am order, the concept of a class as opposed to 10,000, 5,000, 50,000 individual habeas corpus petitions. Of course, that drove Al Maddy. So they file in Southern District of Texas and they get an order and a class by a judge there blocking the removal. But they then hear that the jets are fueling and these people are about to be loaded onto planes in the Northern District where they had also filed Texas Judge Hendricks. They run into Judge Hendricks, but he's like slow walking this, he's slow footing this, you know, which gives the advantage to the Trump administration. Well, I believe the. I don't know what voice I'm doing, but you'll go with it. I believe the lawyers for the Department of Justice. I don't know why you believe anything they say, but Mr. Ensign, that they're not going to deport these people while I've got the case.
- [09:37]
Co-host
And so I'm not going to issue.
- [09:38]
Michael Popak
An injunction to make sure that's true. And the ACLU freaked out and said, no, that doesn't work for us. So we don't believe a word this guy says. So they went to the fifth Circuit Court of Appeals while Hendricks was like.
- [09:49]
Co-host
Well, I'll get to it in due course.
- [09:51]
Michael Popak
In due course these guys are going to be already checking into, you know, Hotel Secot in El Salvador. So they ran to the 5th Circuit. The 5th Circuit sort of did the same thing at the appellate level. Well, it seems premature. Well, the government said they're not maybe, who knows. And meantime, you know, jets are fueling, you know, start the turbines. I may be very open with you on this podcast, but off the air.
- [10:15]
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Michael Popak
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- [11:24]
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Michael Popak
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- [11:42]
Michael Popak
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- [12:24]
Michael Popak
Ran to the United States Supreme Court and say what you want about procedure and say what you want about slow methodical process for the Supreme Court. They ruled like that. I mean I joked recently that I never saw a bunch of 60 and 70 year olds move this fast except for the Senior Olympics. I mean they move. This is unusual people. That said, I don't seem to remember another 1am issuance by the Supreme Court. It doesn't happen. I Mean, maybe in a death penalty case, you know, obviously, but, but not, not on this, not on a major issue. And Alito didn't like it. And here's how he started his order, his dissent. Shortly after midnight yesterday, the court hastily and prematurely granted unprecedented emergency relief under the All Writs Act. The government ordered. The government. The court ordered the government not to remove a putative class of detainees until this court issues another order. Although the order does not define the putative class, it appears the court means all members of the class that the habeas petitioner sought to have certified all noncitizens in custody in the Northern district of Texas. Yeah, that would be the class, Sam. He then says it's not clear that the court had jurisdiction. This is on page two. He doesn't like the fact that certain things were done on Good Friday because he's a practicing Catholic. So he said on page three. When the applicants requested such relief in the district court, they insisted on a ruling within 45 minutes on good Friday afternoon. And when the district court did not act within 133 minutes, they filed a notice of appeal. I mean, it's sort of like a guy strapped into a chair about to be electrocuted or given the death penalty. Can I move quick? I think that's how the ACLU approach this. The only papers before this court were those submitted by the applicants. The court has not ordered or received a response by the government. That's not entirely true. The government, the court order said, hey, government, when you get around to it.
- [14:23]
Co-host
Send us in a paper.
- [14:24]
Michael Popak
And John Sauer for the Solicitor General Office of the United States, Donald Trump's former criminal defense lawyer already sent in his brief, you know, and he said, well, we should have the power to deport under something other than the Alien Enemies Act. But that doesn't answer the question of notice and due process. And what notice is required to make due process effective? To be clear, we're not fighting for criminals to be let out of jails. I know that's the juvenile sophomore facile explanation by the Trump administration and its spokespeople.
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Co-host
Democrats want to let all the criminals.
- [15:04]
Michael Popak
Out of jail, but we don't. We just want a process required and demanded by the Constitution. Constitution. So that I don't care about these people particularly. I care about the institution of our constitutional republic. Get it? It's hard to believe that we have to have this debate about what it means to be an American in our American jurisprudence and justice system and the fact that there's people on the other side of the debate still floors me. He goes on to say, Justice Alito, that although the court provided class wide relief, the district court never certified a class. And this court has never held that class relief may be sought in a habeas proceeding. Yeah, but that's a red herring too, because the Supreme Court until April 7 never had made a ruling that habeas corpus petition procedure was the right procedure for a deportation. So they're going to have to come up with new rules. That's what we're going to get out of this. We're going to get new rules out of the Supreme Court. What does it mean to say use the habeas corpus petition? What does it mean to say notice? If you do notice in English, these guys speak Spanish. That's not noticed, right? How much time do you have to give them? When do the habeas corpus's petitions have to be filed? What does the evidentiary hearing look like in a court like that? What can be challenged? They're going to have to put more meat on the bone in the one paragraph they issued on the 7th of April. So here's his. Here's how he ends it, Alito.
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Co-host
In sum, literally in the middle of.
- [16:36]
Michael Popak
The night, the court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule. By the way, they've already ruled against this relief without hearing from the opposing party within eight hours of receiving the application with dubious factual support for its order, without providing any explanation for its order. Look, this is nothing more than an administrative stay. They are issued all the time while they wait for the brief to come in to point to the fact. We don't even have the other brief. You never have the other brief. If you're going to grant the administrative stay off of one brief, you then give the other time to file. And that's what they did. So I don't really get this whole complaining and whining about process that we see every day this court use with the shadow docket. I refuse to join the court's order because we had no good reason to think that under the circumstances, issuing an order at midnight was necessary or appropriate. Well, it was 1am and then he goes on to chastise the Trump administration. What's going to happen next? The dissent is in. The second piece of paper from John Sauer on behalf of the government is in and now it's sitting with the nine justices of the United States Supreme Court. I expect sometime this week, this week for the Supreme Court to issue its ruling. It's either going to lift the stay and fine for the government or it's going to fine for the undocumented and rule for the rule of law based on their ruling in the first matter. You know, we've seen two pieces of paper come out of the Supreme Court, which gives us some indication of what could happen next. We've got the ruling in Abrego Garcia, which supported Judge Zinnis and told her make sure he gets due process, make sure he gets his Fifth Amendment rights protected and bring him back, facilitate his release. And then we got the ruling here on the 7th of April, which stands for the proposition that you got to give at least habeas corpus type notice and due process before you deport and remove. Put those two things together. I think we're going to see something against the Trump administration. They now figured out that if you give them just a very bare bones order, they're going to screw with it. They're going to not abide by it. They're going to try to take advantage of the murkiness. So they're going to have to make it more clear. And I think that's what we're going to see over the next week. You know where to find out about it here on the Midas Dutch Network with my, my Reporting on Legal AF type work. Legal AF, the YouTube channel. Come on over to Legal AF and hit the subscribe button there. As we continue to grow that pro democracy channel, we're adding 70,000 subscribers a month. Be the 70,000th and one and then you'll get reminders about all of our work there at the intersection of law and politics. So until my next reporting, I'm Michael Popak. In collaboration with the Midas Touch Network, we just launched the Legal AF YouTube channel. Help us build this pro democracy channel where I'll be curating the top stories the intersection of law and politics. Go to YouTube now and free subscribe at LegalAftn. That's egalafmtn.